CLA-2 CO:R:C:G 085175 JLJ, 842817
Mr. Zack Cernovsky
Agape Company
P.O. Box 655
Port Stanley
Ontario, Canada NOL2AO
RE: Plastic Pants for Incontinent Adults
Dear Mr. Cernovsky:
You requested a tariff classification under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA) for a
pair of plastic pants for incontinent adults manufactured in
Canada, England or Taiwan. You suggest classification under the
provision for orthopedic appliances ... and other appliances
which are worn ... to compensate for a defect or disability:
other: other, in subheading 9021.90.80, HTSUSA, or under the
provision for paper diapers and diaper liners and similar
sanitary articles, in subheading 4818.40.40, HTSUSA. You
submitted a sample and descriptive literature with your request.
FACTS:
The plastic pants at issue are intended to be worn over
cotton diapers or pants by incontinent adults. They are 85
percent vinyon plastic and 15 percent textile covered rubber
elastic.
LAW AND ANALYSIS:
The instant plastic pants are not considered orthopedic
appliances because they are not appliances for preventing or
correcting bodily deformities or for supporting or holding organs
following an illness or operation, as defined by the Explanatory
Notes for Heading 9021, HTSUSA. Nor do they fit within the
remainder of the scope of Heading 9021, because they are not
splints and other fracture appliances, artificial limbs or other
artificial parts of the body, hearing aids or other appliances
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worn to compensate for a defect or disability (e.g., speech-aids,
pacemakers, or electronic aids for the blind.) Indeed, the
instant pants are not appliances but wearing apparel; therefore,
they are not eligible for classification in Heading 9021.
The plastic pants are also ineligible for classification in
Heading 4818, which provides for diapers, diaper linings and
similar sanitary articles of paper pulp, paper, cellulose wadding
or webs of cellulose fibers. Inasmuch as the instant pants are
not made of paper nor of the other materials enumerated, they
cannot be classified in Heading 4818.
While you did not raise it yourself, the possibility of
classification under the provision for articles specially
designed for the use or benefit of the blind or other physically
or mentally handicapped persons in subheading 9817.00.96, HTSUSA,
was raised in other letters concerning similar products for the
incontinent.
Incontinent people are unable to control certain bodily
functions. You indicate that many people, especially older
people, suffer from incontinence at some point in their lives.
While the plastic pants would help incontinent people, we see no
absolute correlation between being incontinent and being mentally
or physically handicapped. It is quite possible to be
incontinent and to be healthy in every other way. Incontinence
in and of itself is not a physical handicap; therefore, classifi-
cation in subheading 9817.00.96, HTSUSA, is inappropriate for the
plastic pants because they are neither specially designed nor
adapted for handicapped people.
Inasmuch as the instant plastic pants are wearing apparel
made of plastic, they are classifiable under the provision for
other articles of plastics: articles of apparel and clothing
accessories: other, in subheading 3926.20.5050, HTSUSA, dutiable
at the rate of 5 percent ad valorem. Articles originating in
Canada and classified in this subheading are eligible for a duty
rate of 4.5 percent ad valorem under the United States-Canada
Free Trade Agreement if all applicable regulations are met.
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HOLDING:
The plastic pants are classified in subheading 3926.20.5050,
HTSUSA.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc: A.D. N.Y. Seap. (NIS-353 and NIS-119)
JLJohnson:tj:typed 08/24/89
Jones library
name: 085175JLJ