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