CLA-2-48:OT:RR:NC:4:434
Mr. Richard Embry
E. Besler & Co.
115 Martin Lane
Elk Grove Village, IL 60007
RE: The tariff classification of disposable incontinence underpads from China
Dear Mr. Embry:
In your letter, dated July 23, 2020, you requested a tariff classification ruling on behalf of your client, SVS LLC dba S2S Global, for disposable adult incontinence underpads, including the applicability of subheading 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS). Detailed specifications were submitted for our review.
The product under consideration is a disposable underpad of Level 3 premium absorbency designed to lay on a bed or other flat surface under an incontinent person. The underpad is constructed of multiple layers, including a top layer of spunbond non-woven textile, an absorbent core of fluff pulp and super absorbent polymer (SAP), and a backsheet of non-woven textile and breathable polyethylene (PE) film. The pads are sold in at least two sizes, 23” x 36” and 30” x 36,” per the company’s website.
You propose classification in subheading 4818.90, HTSUS, which provides for “…handkerchiefs, cleansing tissues, towels, tablecloths, table napkins, bed sheets and similar household, sanitary or hospital articles, articles of apparel and clothing accessories, of paper pulp, paper, cellulose wadding or webs of cellulose fibers.” We agree. It is the fluff pulp core that is indispensable to the function of the product in drawing in and retaining moisture. The applicable subheading for the underpads will be 4818.90.0080, HTSUS. The rate of duty will be Free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at https://hts.usitc.gov/current.
You also inquire whether the product is "specially designed or adapted" for the handicapped within the meaning of the Nairobi Protocol, Annex E, to the Florence Agreement, as codified in the Education, Scientific, and Cultural Materials Act of 1982, and therefore eligible for duty-free treatment under subheading 9817.00.96, HTSUS. The Nairobi Protocol, Annex E, to the Florence Agreement, as codified by the United States Congress as the Education, Scientific, and Cultural Materials Act of 1982 (Pub.L. 97-446, 96 Stat. 2346(1982)) established the duty-free treatment for certain articles for the handicapped. Presidential Proclamation 5978 and Section 1121 of the Omnibus Trade and Competitiveness Act of 1988, provided for the implementation of the Nairobi Protocol into subheadings 9817.00.92, 9817.00.94 and 9817.00.96 of the HTSUS. These tariff provisions specifically state "[a]rticles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons" are eligible for duty-free treatment. U.S. Note 4(a), subchapter XVII, Chapter 98, HTSUS, states that "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." It has been previously established that a person suffering from chronic incontinence is "physically handicapped" within the meaning of U.S. Note 4(a), subchapter XVII, Chapter 98 HTSUS (see Headquarters Ruling Letter 085092, dated May 10, 1990, and Headquarters Ruling Letter 085094, dated May 10, 1990).
The articles under consideration in the instant ruling are disposable underpads. This office must consider whether they are for use by the chronically incontinent vs. acute or transient incontinence.
In Headquarters ruling 085094, dated May 10, 1990, reusable textile underpads were found to be for the benefit of the chronically incontinent. The ruling states, “The underpads are well-constructed, sturdy and durable products. They are designed for long-term use of two years or more… 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.”
This ruling implies that disposable underpads can be used by individuals with mere acute or transitory incontinence rather than chronic incontinence. This position is also consistent with CBP’s previous consideration of disposable diapers. See Headquarters ruling letter 557529, dated March 8, 1994. Furthermore, the SVS company website lists possible uses for the Level 3 underpads under the heading “Target Market.” Listed uses are “overnight incontinence”, “maternity repositioning”, and “bariatric and EMS/ambulatory patients.” Such recommended uses are not associated with chronic incontinence.
The underpads under consideration are disposable incontinent care products that are not durable or reusable or designed for long-term use. The requester has not submitted sufficient facts in this case to support a finding that these products are not within the exception for acute or transient disabilities. Accordingly, we find that the requester has not shown that these articles would be more likely to be used by persons with chronic incontinence. Therefore, we find that the underpads do not satisfy the requirements of duty-free treatment under subheading 9817.00.96, HTSUS.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 4818.90.0080, HTSUS, unless specifically excluded, are subject to an additional 7.5 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, 9903.88.15, in addition to subheading 4818.90.0080, HTSUS, listed above.
The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Charlene Miller at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division