United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1990 HQ Rulings > HQ 0085756 - HQ 0085839 > HQ 0085798

Previous Ruling Next Ruling


HQ 085798


April 18, 1990

CLA-2 CO:R:C:G 085798 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.00.9600

William J. Maloney, Esq.
Rode & Qualey
295 Madison Avenue
New York, New York 10017

RE: Classification of an adult diaper and adult bib-- Reconsideration of HRL 085007 of October 5, 1989

Dear Mr. Maloney:

This ruling is in response to your request, on behalf of Absorb-Plus Textiles Inc., for reconsideration of HRL 085007 in which an adult diaper was classified under the provision for women's or girls' other garments of cotton in subheading 6211.42.0080, HTSUSA, and an adult bib was classified under the provision for other made up knitted or crocheted clothing accessories in subheading 6117.80.0010, HTSUSA.

FACTS:

The adult diaper at issue, style number 4788, is a reusable, absorbent, textile diaper for individuals suffering from inconti- nence. The diaper has an outer shell which consists principally of a woven polyester base fabric that has been completely and visibly covered with vinyl. The remainder of the outer shell and the lining consists of 100 percent cotton woven fabric. The inner lining of the diaper consists of a polyester/rayon felt material. One end of the diaper has an elasticized band with a snap at each end; the other end has a simple hem with four matching snaps at each end.

The diaper comes in other styles and some versions are secured by pins rather than by snaps.

The adult bib at issue, style number 7006, has a front panel of 100 percent cotton terry fabric and a back panel of 100 percent woven polyester fabric that has been completely and visibly covered with vinyl on the inner side of the fabric.

The bib is designed to cover a person's torso and is secured around the neck by a snap closure. The front terry panel serves to absorb spills while the impermeable back panel serves to protect the wearer from spills which could stain clothing or from hot spills which could injure.

The bib is constructed and designed for durability and should last at least two years with proper laundering. The bib must be laundered after soiling because the front panel cannot be simply wiped clean.

The bib comes in a number of different styles which are essentially the same except the construction and front panel design may differ.

Both the bib and diaper at issue are sold primarily to intermediate care, skilled nursing and chronic care facilities.

ISSUE:

Are the adult diaper and adult bib at issue classifiable as articles specially designed or adapted for the use or benefit of physically or mentally handicapped persons other than the blind under subheading 9817.00.9600, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

Subheading 9817.00.9600, HTSUSA, provides for articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons, other. Note 4 to Subchapter XVII, Chapter 98, provides the following:

(a) For purposes of subheadings 9817.00.92, 9817.00.94, and 9817.00.96, the term "blind or other physically or mentally handicapped persons" includes any person suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities, such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working.

(b) Subheadings 9817.00.92, 9817.00.94, and 9817.00.96 do not cover --

(i) articles for acute or transient disability;

(ii) spectacles, dentures, and cosmetic articles for individuals not substantially disabled;

(iii) therapeutic and diagnostic articles; or

(iv) medicine or drugs.

Thus, according to Note 4, articles classifiable in the above subheading must meet the following requirements: (1) they must be designed for the benefit of persons suffering from a physical or mental impairment; (2) this impairment must substantially limit one or more major life activities; and, (3) this impairment must be permanent or chronic.

Incontinence refers to a person's inability to voluntarily control the passing of body wastes. An article entitled "Urinary Incontinence in Adults," begins with the following statement: "Urinary incontinence, the involuntary loss of urine so severe as to have social and/or hygienic consequences, is a major clinical problem and a significant cause of disability and dependency." (Bold added). The article was published as a National Institutes of Health Consensus Development Conference Statement, Vol. 7, #5, October 3-5, 1988, by the U.S. Government Printing Office. Incontinence is clearly an impairment.

Incontinence can, without the use of incontinent care products, interfere with life's activities, including a major life activity--working. Without incontinence care products, an individual suffering from incontinence would most likely find it difficult, if not impossible, to hold down a job.

The question still remains as to whether this diaper is used by persons suffering from a permanent or chronic impairment, as opposed to an acute or transitory impairment.

The diaper at issue is a well-made and durable product. It is designed for long-term use of two years or more. In your submission, you point out the expense associated with purchasing and properly caring for the diaper at issue. As you suggest, and we agree, an individual with acute or transitory incontinence would not be likely to purchase reusable products, such as that at issue, based on cost alone. Such an individual could easily meet their need for much less with disposable products.

The article at issue is sold to intermediate care, skilled nursing and chronic care facilities, such as Veterans Hospitals, which tend to have a large proportion of residents who suffer from permanent or chronic incontinence. In contrast. disposable products, which are less expensive, are invariably favored by acute care facilities and persons suffering from an incontinence problem expected to last only a short duration.

Based on your submissions, we agree that the product at issue is designed for the use of individuals suffering from permanent or chronic incontinence. We believe the article at issue meets the requirement for classification as an article designed for the use or benefit of handicapped persons as defined in Note 4.

We still must address the issue of the adult bib. The bib was specifically designed for and is used by individuals who are residents of chronic care facilities. These individuals suffer from any of a number of physical or mental impairments which substantially or completely limit their ability to feed and care for themselves.

The impairments that would lead one to need and use the type of bib at issue interfere with one of life's major activities, i.e., eating. You state in your submission that bibs such as the one at issue are designed specially for, and used, by chronic care residents--the vast majority of whom suffer from chronic or permanent physical or mental impairments such as Alzheimer's disease, Parkinson's disease, and arthritis.

According to your submissions, the subject bib is designed primarily for individuals who, in spite of their impairments, can still attempt to feed themselves but are subject to frequent spills. The bib protects individuals from spills and affords them the opportunity to feed themselves with some preservation of their dignity.

The cost of using the bibs is relatively expensive compared to the cost of alternative products. First, there is the cost of purchasing several bibs. The bibs must be laundered after being soiled so several must be purchased. Second, there is the cost of the laundering. Because the bibs are made to last for 1 1/2 years, their purchase and use only become cost effective if they are used for a period of time rather than on a temporary basis. It would be less expensive for someone with a temporary impairment to use towels, sheets, or other articles which are already owned.

The market for the subject bib is chronic care facilities. Acute care facilities do not purchase bibs such as the bibs at issue for transient patients. It is simply not cost efficient to purchase these bibs because an acute care facility or hospital cannot predict the need for the bibs on a daily basis. Instead, it is more cost efficient for such facilities to purchase and use such items as sheets, towels, and disposable products.

Based on your submissions, we agree that due to its design features, durability, cost, and use in chronic care facilities, the submitted bib is designed for the use or benefit of handicapped individuals as required by Note 4.

HOLDING:

The adult diaper and adult bib at issue are classified under heading 9817.00.9600, HTSUSA, which provides for articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons, other. Articles classified under this subheading are free of duty.

Pursuant to 19 CFR Section 177.9(d) (1989), HRL 085007 of October 5, 1989, is hereby revoked.

Please note that while these articles are not subject to assessment of duty, this does not remove them from visa/quota requirements. However, as products of Canada, they are not subject to visa/quota restrictions.

Sincerely,

John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: