CLA-2 CO:R:C:G 085092 CMR
William J. Maloney, Esq.
Rode & Qualey
295 Madison Avenue
New York, New York 10017
RE: Classification of an adult diaper, containment pad and
underpad; Revocation of NYRL 846983 of December 5, 1989
Dear Mr. Maloney:
This ruling is in response to your request, on behalf of
Med-I-Pant Inc., for classification of various incontinence care
products and reconsideration of NYRL 846983 in which a
containment pad, style 20329, was classified under the provision
for garments made up of fabrics of heading 5602, 5603, 5903,
5906, or 5907, in subheading 6210.50.2050, HTSUSA.
The incontinence care products at issue include an adult
diaper known as the med-i-brief, style 153, a pin-free
containment pad, style 232, a containment pad, style 20329, and
an underpad known as the med-i-pad, style 116.
The med-i-brief is a reusable, absorbent textile pant or
diaper for individuals suffering from incontinence. The brief
has a shell composed of knit polyester material with a clearly
visible green vinyl coating. The shell fabric, referred to as
the Soft Green Barrier for marketing purposes, prevents leakage
when fitted and worn properly. The interlining of the brief
consists of 65 percent polyester, 20 percent rayon and 15 percent
polypropylene nonwoven fabric. The lining is a 80 percent cotton
and 20 percent polyester woven fabric. The brief has a partly
elasticized waistband and fully elasticized leg openings. The
brief is secured by snaps and can be adjusted for purposes of
fit. The brief is available in five basic sizes and is suitable
for both men and women.
The pin-free containment pad, style 232, is designed for use
by bed-ridden incontinent individuals. When properly folded and
fitted, the principal portion of the outer shell consists of the
vinyl covered knit polyester fabric known as the Soft Green
Barrier. The interlining consists of 65 percent polyester, 20
percent rayon and 15 percent polypropylene nonwoven fabric. The
lining is 100 percent cotton woven fabric. The pad has a
partially elasticized waist and is secured by snaps. The pad is
available in four sizes.
The style 20329 containment pad is essentially the same as
the style 232 described above except that it does not have a
partially elasticized waist nor snap closures. This garment is
secured by safety pins.
The med-i-pad, style 116, is rectangular and measures
approximately 34 inches by 36 inches. The outer surface of the
pad consists of the vinyl covered knit polyester fabric known as
the Soft Green Barrier. The interlining consists of 65 percent
polyester, 20 percent rayon and 15 percent polypropylene
nonwoven fabric. The lining is a woven fabric of 80 percent
cotton and 20 percent polyester. When properly folded and
secured the pad may be worn as a brief garment. It may also be
used as an "open" system of protection while an individual is in
All of the incontinence care products at issue are sold
primarily to intermediate care, skilled nursing and chronic care
Are the articles 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;
(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 these articles are
used by persons suffering from a permanent or chronic impairment,
as opposed to an acute or transitory impairment.
The articles at issue are well-made 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 these articles. 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
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 these articles
meet the requirement for classification as articles designed for
the use or benefit of handicapped persons as defined in Note 4.
The articles 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), NYRL 846983 of
December 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.
John Durant, Director
Commercial Rulings Division
6cc: Area Director, New York Seaport
1cc: Legal Reference Section
1cc: Phil Robins