CLA-2 CO:R:C:G 085574 CC 842297 085407
Mr. William J. Maloney
Rode & Qualey
295 Madison Avenue
New York, N.Y. 10017
RE: Revocation of New York Ruling Letter (NYRL) 842297 and
Headquarters Ruling Letter (HRL) 085407;
Incontinence care products
Dear Mr. Maloney:
This letter is in response to your request for
reconsideration of NYRL 842297, dated July 10, 1989, which we
reconsidered in HRL 085407, dated November 30, 1989, on behalf
of Med-I-Pant, Inc., concerning the classification of adult brief
insert incontinence care products. Samples were submitted for
examination.
FACTS:
Fives samples were submitted for classification. They are
designated by you as styles 730-M, 730-P, 711-XS, 711, and 711-T.
Styles 730-M and 730-P are described as adult brief inserts.
Style 730-M is constructed of 90 percent cotton and 10 percent
man-made fabric and measures approximately 19 inches by 16
inches. Style 730-P is constructed of 100 percent woven cotton
fabric and measures 21 inches by 14 inches. Extra layers of
woven fabric are sewn lengthwise down the center of these
articles. They are used with another of your client's products,
Med-I-Briefs, for persons with high level incontinence.
Styles 711-XS, 711, and 711-T are described as Med-I-Liner
inserts and are constructed of three layers of fabric. Style
711-XS measures 15 3/16 inches by 6 inches; Style 711 measures
25 inches by 8 1/8 inches; Style 711-T measures 21 13/16 inches
by 10 inches. They are made of 60 percent polyester, 30 percent
vinyl, and 10 percent cotton material. They are worn beneath
snug fitting nylon stretch pants or other undergarments.
We decided in NYRL 842297 and in HRL 085407 that these
articles were not classifiable under subheading 9817.00.96 of the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), which provides for articles specially designed or
adapted for the use or benefit of physically or mentally
handicapped persons. Instead, they were classified under
subheading 6307.90.9050, HTSUSA, as other made up textile
articles. You believe that these products are classifiable under
subheading 9817.00.96.
ISSUE:
Whether the submitted samples are classifiable as articles
specially designed or adapted for the use or benefit of
physically or mentally handicapped persons under subheading
9817.00.96, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.
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.
U.S. Note 4 to Subchapter XVII 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 U.S. 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 of life's major activities, and
(3) this impairment must be permanent or chronic.
Incontinence is the inability of a person to voluntarily
control the passing of bodily wastes, due to physical or mental
impairment. Not only does it interfere with controlling the
passing of bodily wastes, incontinence can, without the use of
incontinent care products, interfere with a person's ability to
work. We therefore agree that a person suffering from chronic
incontinence is physically handicapped as that term is defined in
U.S. Note 4(a) to Subchapter XVII.
The question that remains is whether the products under
consideration are used by those who have a permanent or chronic
impairment, or, instead, by those who have an acute or transient
disability. You contend that due to its sturdy construction and
durability, relatively high cost, and use in chronic care
facilities, the submitted merchandise is designed for those who
have permanent or chronic incontinence.
You state that the submitted samples are well-constructed,
substantial, and durable products, which will be subjected to
repeated use over a long term. When properly used and laundered,
the products will last for two years or more. The market for
these products would be those persons with chronic incontinence,
since those with temporary incontinence would benefit by
purchasing disposable incontinent care products.
Also, these products are rather expensive. First, there is
the expense in purchasing them. A typical incontinent person
uses approximately five inserts per day and must purchase more
than this number, since they must be laundered. In addition,
the inserts require further investment for storage, handling and
laundering. It only becomes cost effective to purchase these
products for someone who will use them for a long period of time;
it is less expensive to purchase disposable products for those
persons who have acute or transitory incontinence.
These articles, along with all the products that your client
markets, are sold to intermediate care facilities, skilled
nursing facilities, and chronic care hospitals, such as Veterans
Hospitals, which have a large proportion of residents who require
care for chronic incontinence. In contrast to your client's
products, disposable products, which are less expensive, are
invariably favored by acute care facilities and persons having an
incontinence problem of short duration. You have submitted a
copy of a study that reveals that the market for reusable
incontinent products is almost entirely dependent upon nursing
homes, with some sales for the home chronic care setting. Also,
you have submitted a list of your client's customers, which shows
that most of them are chronic care facilities.
Based on your submissions, we agree that due to its sturdy
construction and durability, relatively high cost, and use
principally in chronic care facilities, the submitted merchandise
is designed for those who have permanent or chronic incontinence.
The requirements for classification as articles designed for the
use or benefit of handicapped persons have been met according to
U.S. Note 4; therefore, the submitted merchandise is classifiable
under subheading 9817.00.9600, HTSUSA.
HOLDING:
The submitted merchandise is classified under subheading
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
classifiable under this subheading are free of duty.
Pursuant to Section 177.9 of the Customs Regulations (19 CFR
177.9), NYRL 842297, dated July 10, 1989 and HRL 085407, dated
November 30, 1989, are modified accordingly.
Sincerely,
John Durant, Director
Commercial Rulings Division