CLA-2 CO:R:C:G 085798 CMR
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.
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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;
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(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.
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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.
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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
6cc: Area Director, New York Seaport
1cc: CITA
1cc: Legal Reference Section
1cc: Phil Robins