CLA-2 CO:R:C:G 085576 CC 085017
Mr. William J. Maloney
Rode & Qualey
295 Madison Avenue
New York, N.Y. 10017
RE: Revocation of Headquarters Ruling Letter (HRL) 085017;
Adult bib for handicapped
Dear Mr. Maloney:
This letter is in response to your request for
reconsideration of HRL 085017, dated July 31, 1989, on behalf of
Med-I-Pant, Inc., concerning the classification of an adult bib.
A sample was submitted for examination.
FACTS:
The adult bib, designated as Style 108, has snaps at the
neck and, measuring 17 inches in width by 36 inches in length, is
large enough to cover an adult torso. The front panel of the bib
consists of plaid 100 percent cotton woven fabric. The rear
panel consists of a knit polyester base fabric, which is
completely and visibly covered by green vinyl. The impermeable
rear panel protects the wearer from spills that could stain
clothing or from hot spills that could injure. The soft
polyester based material of the rear panel permits the garment to
be worn directly against the wearer's skin.
In HRL 085017 Customs ruled that the evidence did not
support a finding that this article was classifiable under
subheading 9817.00.96 of the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), for articles specially designed
or adapted for the use or benefit of physically or mentally
handicapped persons. Instead, it was classified under subheading
6217.10.0010, HTSUSA, which provides for other made up clothing
accessories.
ISSUE:
Whether the submitted sample is classifiable as an article
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.
You state that the subject bib was specifically designed
for and is used by persons who are residents of chronic care
facilities and who suffer from any number of physical or mental
impairments that substantially or completely limit their ability
to feed and care for themselves.
A chronic physical or mental impairment which results in the
inability of a person to feed oneself without the frequent
spillage of food and drink, thereby necessitating the use of a
protective bib, does in fact limit one of life's major
activities, i.e., that of eating.
The question that remains is whether this article is used
principally by those who have a permanent or chronic impairment,
or, instead, by those who have an acute or transitory impairment.
You state that due to its design features, durability, cost, and
use in chronic care facilities, the subject bib is specifically
designed for and will be used by persons suffering from chronic
or permanent physical impairments, such as Alzheimer's disease,
Parkinson's disease, and arthritis; it is not likely to be
purchased for or used by persons suffering from a temporary or
transient condition.
According to your submissions, the subject bib is designed
primarily for those persons who can still attempt to feed
themselves, but are prone to frequent spills because of their
chronic or permanent physical impairment. The bib affords such
persons with protection from spills, particularly hot liquids.
In addition, the front plaid panel, which serves to disguise
spills and is more attractive than the frequently used sheets,
towels, and blue paper products, helps to preserve the wearer's
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. Second, there is the cost of laundering
the subject bibs, which must be done after each use since the
spills cannot be wiped from the cotton plaid fabric. Because the
bibs are made to last for at least 1 years of continuous use,
their purchase and use only become cost effective if they are to
be used longer than on a temporary basis. It would be less
expensive for someone with a temporary impairment to use towels,
sheets, or other articles that are already owned.
The market for the subject bib is chronic care facilities.
Acute care facilities do not purchase bibs like the subject bibs
for transient patients. One reason that hospitals and acute care
facilities do not purchase the subject bibs or similar articles
is that an acute care facility does not know how many bibs will
be required on a given day. Therefore, the subject bibs are not
cost effective at a hospital or acute care facility. Instead, it
is less expensive at such facilities to purchase items such as
disposable products.
Based on your submissions, we agree that due to its design
features, durability, cost, and use in chronic care facilities,
the submitted merchandise is designed for those who have
permanent or chronic impairments. The requirements for
classification as an article 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), HRL 085017, dated July 31, 1989, is modified
accordingly.
Sincerely,
John Durant, Director
Commercial Rulings Division