CLA-2 CO:R:C:G 085094 CMR
William J. Maloney, Esq.
Rode & Qualey
295 Madison Avenue
New York, New York 10017
RE: Classification of underpads (bed diapers)
Dear Mr. Maloney:
This ruling is in response to your request, on behalf of
Absorb-Plus Textiles Inc., for classification of underpads (bed
diapers) used by individuals suffering from incontinence.
FACTS:
The articles at issue, styles 1111 and 1311 underpads (bed
diapers) measure approximately 34 inches by 36 inches. The
outer surface of the pads is composed of woven polyester base
fabric which has been completely and visibly covered with green
vinyl. The inner surface is a woven cotton/polyester blend
fabric. The interlining is a nonwoven rayon based fabric. Style
1311 has a quilted lining.
The pads at issue may be used as brief garments when
properly folded and secured while an individual is sitting, for
instance, in a chair or wheelchair; or the briefs may be used as
an "open" system of protection while an individual is in bed.
The underpads are sold principally to intermediate care
facilities, nursing homes and chronic care facilities.
ISSUE:
Are the subject underpads 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?
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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.
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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 the underpads at
issue are used by persons suffering from a permanent or chronic
impairment, as opposed to an acute or transitory impairment.
The underpads are well-constructed, sturdy and durable
products. They are 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 underpads 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 those at issue, based on cost alone. Such an
individual could easily meet their need for much less with
disposable products.
The articles at issue are 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 products at
issue are designed for the use of individuals suffering from
permanent or chronic incontinence. We believe the articles
meet the requirement for classification as articles designed for
the use or benefit of handicapped persons as defined in Note 4.
HOLDING:
The underpads at issue, styles 1111 and 1311, 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.
While this article is not subject to assessment of duty,
this does not remove it from visa/quota requirements; however,
as a product of Canada, it is 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