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.

FACTS:

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.

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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 bed.

All of the incontinence care products at issue are sold primarily to intermediate care, skilled nursing and chronic care facilities.

ISSUE:

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:

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(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 -4-

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 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 these articles meet the requirement for classification as articles designed for the use or benefit of handicapped persons as defined in Note 4.

HOLDING:

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.

Sincerely,

John Durant, Director
Commercial Rulings Division

6cc: Area Director, New York Seaport
1cc: CITA
1cc: Legal Reference Section
1cc: Phil Robins