CLA-2 RR:CTF:VSP ACH
Matthew A. Bock
53 State Street
Suite 500
Boston, MA 02109
RE: Articles for the handicapped; Subheading 9817.00.96; Quilted Bonded Fabric
Dear Mr. Bock:
This is in reference to a letter dated March 24, 2025, sent on behalf of Cooley Group
Holdings, Inc. (“Cooley”), seeking reconsideration of New York Ruling Letter (“NY”) N344168,
dated December 19, 2024, which denied duty-free treatment under subheading 9817.00.96,
Harmonized Tariff Schedule of the United States (“HTSUS”), to quilted bonded fabric.
Cooley employs an advanced extrusion-coating process to produce specialized
incontinence bed pads. This process involves applying a layer of flexible vinyl polymer onto a
circular knit fabric. The flexible vinyl compound is a mixture of PVC resin, plasticizers,
lubricants, process aids, heat stabilizers, pigments, and fillers. The circular knit fabric is made by
Cooley from 70 denier polyester yarn, selected for its resilience and performance. A second layer
of flexible vinyl is extruded between the vinyl-coated circular knit and quilted fabric. The result
is a waterproof, durable, and flexible vinyl layer that bonds the quilted and knit fabrics together,
providing the necessary strength and waterproofing for the pad’s unique functionality.
The fabric will be imported into the United States in rolls, where the product will be used
to produce finished incontinence bed pads. Post-importation manufacturing consists of (1)
cutting the material to shape, (2) stitching a label to the product, (3) finishing the edges of the
fabric to prevent unraveling or curling, and (4) packaging the product. The finished bed pads are
then sold to a single customer for distribution to institutional and hospital laundry systems and
are used solely for incontinence.
The Uniply incontinence bed pads are designed specifically for repeated institutional use.
They must endure numerous high-temperature laundry cycles while maintaining their integrity.
These bed pads are positioned under the patient, with the quilted face fabric providing optimal
comfort and moisture wicking. Beneath the surface, the quilted needle punch soaker material
absorbs moisture from accidents, while the dual flexible vinyl coatings create an impenetrable
waterproof barrier to protect mattresses from contamination. The back of the pad features the
circular knit fabric, which prevents the vinyl from sticking to itself in the dryer, a critical feature
for maintaining product performance, even after 150 wash cycles.
In NY N344168, CBP held that, because the imported product could have a myriad of
uses at the time of importation, the quilted bonded fabric was not eligible for duty-free treatment
under subheading 9817.00.96, HTSUS. Cooley believes this decision was wrong for the
following reasons:
• Cooley believes that CBP contradicts itself in saying the fabric’s identity is not
“fixed with certainty” yet conceding that the rolls are key components of
incontinence bed pads.
• Cooley believes that the imported rolls of fabric should be treated as though they
were complete bed pads.
• Cooley believes that because items such as wound dressings and medical tapes
qualify as medical articles in roll form, then bed pads in roll form should qualify
as articles for the handicapped. Cooley also points out that these articles could be
used for other purposes.
• Cooley believes that the industrial-grade durability and laundering requirements
of the bed pads make them impractical and commercially inconceivable for
consumer applications and believes that CBP has never denied treatment under
subheading 9817.00.96, HTSUS, based on the possibility of alternative uses rather
than the actual use. Cooley also believes there is no economic incentive to
purchase the fabric for “non-handicapped uses.”
• Cooley believes that the fabric is not commercially viable for any use other than
incontinence pads, that the final product is already visible at importation because
only minor cutting and labeling remain, and that the fabric cannot be customized
into multiple different products.
• Cooley believes that NY N344168 contradicts other rulings holding that
incontinence products designed for repeated institutional use qualify under
subheading 9817.00.96, HTSUS.
• Cooley believes that CBP bears the burden of proof and must show actual
evidence of significant non-handicapped uses in the marketplace rather than
“relying on hypothetical and unsupported scenarios.”
The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific and
Cultural Materials of 1982, Pub. L. No. 97-446, 96 Stat. 2329, 2346 (1983) established 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, HTSUS.
Subheading 9817.00.96, HTSUS, covers: “Articles specially designed or adapted for the
use or benefit of the blind or other physically or mentally handicapped persons; parts and
accessories (except parts and accessories of braces and artificial limb prosthetics) that are
specially designed or adapted for use in the foregoing articles . . . Other.”
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CBP has issued multiple rulings stating that bed pads can qualify as articles for the
handicapped. See e.g. HQ W562506, dated October 28, 2002, HQ 088279, dated March 5, 1991,
HQ 087337, dated August 30, 1990. However, the issue here is whether the imported quilted
bonded fabric qualifies as an article for the disabled at the time of its importation. To resolve this
issue, CBP must first determine whether unfinished articles for the handicapped are eligible for
duty-free treatment under subheading 9817.00.96, HTSUS.
GRI 2(a) states:
any reference in a heading to an article shall be taken to include a reference to that
article incomplete or unfinished, provided that, as entered, the incomplete or
unfinished article has the essential character of the complete or finished article. It
shall also include a reference to that article complete or finished (or falling to be
classified as complete or finished by virtue of this rule), entered unassembled or
disassembled (emphasis added).
In understanding GRI 2(a), the Harmonized Commodity Description and Coding System
Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be
used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August
23, 1989). Explanatory Note 2 (II) states “the provisions of this rule also apply to blanks unless
these are specified in a particular heading… semi-manufactures not yet having the essential
shape of the finished articles (such as is generally the case with bars, discs, tubes, etc.) are not
regarded as blanks” (emphasis added). Therefore, unfinished articles can qualify for duty-free
treatment under subheading 9817.00.96, HTSUS, but the article must have the essential character
or essential shape of the qualifying, finished article.
The courts have addressed the meaning of essential character with respect to GRI 2(a) in
The Pomeroy Collection, Ltd. v. United States, 559 F. Supp. 2d 1374 (Ct. Int’l Trade 2008;
Filmtec Corp. v. United States, 293 F. Supp. 2d 1364 (Ct. Int’l Trade 2003); and Baxter
Healthcare Corp. of Puerto Rico v. United States, 22 C.I.T. 82 (1998). The court has
specifically noted that the focus of the essential character analysis for purposes of GRI 2(a) is
whether or not the identity of the article to be made from the imported good is fixed or certain at
the time of importation. Baxter Healthcare Corp., 22 C.I.T. at 101. Following this directive, the
longstanding position of CBP is that the term “essential character” for purposes of GRI 2(a)
means the attribute which strongly marks or serves to distinguish what an article is; that which is
indispensable to the structure, core or condition of the article; the aggregate of distinctive
component parts that establishes the identity of an article as what it is, its very essence. See HQ
967975, dated March 24, 2006.
In United States v. Buss & Co., 5 Ct. Cust. App. 110, 113 (1914), the Customs court
wrote:
where {textiles} are imported in the piece and nothing remains to be done except
to cut them apart they shall be treated for dutiable purposes as if already cut apart
and assessed according to their individual character or identity. This follows,
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however, only in case the character or identity of the individual articles is fixed
with certainty and in case the woven piece in its entirety is not commercially
capable of any other use (emphasis added).
However, in Bendix Mouldings, Inc. v. United States, 73 Cust. Ct. 201, 188 F. Supp. 1193
(1974), the court stated that “no matter how close the importation is to the finished article or how
dedicated it is to a single use, it remains a material until the identity of actual articles can be seen
emerging with certainty from the undifferentiated material.” In Bendix, uncut wood moldings
dedicated to use as picture frames but not dedicated to the making of any particular frame were
not classifiable as unfinished frames but only as the material from which frames were made. See
also, American Import v. United States, 26 CCPA 72 (1938) (the mere fact that 60-foot lengths
of silk fishing-leader gut was exclusively used for fishing leaders did not take it out of material
classification).
HQ H181679, dated July 17, 2015, addressed the classification of unfinished duvet
covers. CBP held that an unfinished duvet cover did not have the “essential character” of a duvet
cover because one side of the cover was completely unfinished.
HQ 087522, dated October 2, 1990, addressed the issue of unfinished bed pads. Customs
stated:
GRI 2(a) provides that any reference in a heading to an article shall be taken to
include a reference to the incomplete or unfinished article so long as the article
has the essential character of the end-product. However, the article in question
consists of two pieces of cotton fabric partially sewn together and does not have
the essential character of a bed pad.
In HQ 087522, the fabric was pre-cut into its intended shape but was not yet lined with plastic-
covered woven polyester liners.
In HQ H125076, dated March 21, 2011, CBP used GRI 2(a) to find that an unfinished
golf bag did not have the essential character of a golf bag because it was designed to carry golf
clubs and other personal effects, but in its condition as imported, was not capable of such use.
Most importantly, in NY N124614, dated October 22, 2010, CBP held that piece goods or
roll goods not so further manufactured into finished articles that they can be recognized as
dedicated for the use of the handicapped were not eligible for duty-free treatment under
subheading 9817.00.96, HTSUS. In this case, Absorb-Plus imported in the piece or in rolls
various fabric compositions that included a barrier layer bonded to a nonwoven absorbent layer.
Even though this fabric would be made into incontinent underpads, CBP held that they could not
be recognized as dedicated for the use of the handicapped.
In this case, we do not believe that the identity of the bed pads for the use of the
handicapped can be seen emerging with certainty from the undifferentiated material. Buss & Co.
only applies when nothing remains to be done except to cut the fabric apart. Here, the fabric
must be cut to shape, the edges must be finished, and labels must be stitched to the product.
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Therefore, under Buss & Co., the quilted bonded fabric should not be treated as if already cut
apart for dutiable purposes.
Based on foregoing rulings, CBP finds that the fabric at issue does not have the essential
character or shape of an article for the use of the handicapped. As in H181679, the ends of the
bed pads at issue are not finished; as in H125076, the rolls, in the state in which they are
imported, cannot be used for their stated finished purpose, and, as in N124614, the articles
cannot be recognized as dedicated for the use of the handicapped. Although the goods at issue in
this case will require minimal further processing, based on previous CBP rulings, the processing
that still remains is too extensive for the quilted bonded fabric to be classified as its finished
product. Further, we do not believe the quilted bonded fabric has the essential shape of a
finished bed pad because further cutting remains to be done after importation.
Cooley also argues that ruling NY N344168 is inconsistent with HQ 557529, dated
March 8, 1994 (which held that a finished adult diaper was an article specially designed or
adapted for the handicapped), and HQ W562506, dated October 28, 2002 (which held that
mattress underpads were specially designed or adapted for the use or benefit of handicapped
persons). However, CBP believes that these rulings are not contradictory because they deal with
finished incontinence products, not unfinished rolls like those at issue in the present case.
Further, Cooley argues that the quilted bonded fabric is like wound dressings or surgical
drapes imported in roll form. We do not see the similarity because these goods are usually sent
to the final user in roll form and are cut by the user. The fabric rolls at issue in this case could
not be sent to the hospital in roll form and be usable without the additional manufacturing that
will take place in the United States.
Cooley further argues that CBP should be required to present actual evidence of
significant non-handicapped uses in the marketplace. Again, this is not the case. The analysis in
this case turns on whether the quilted bonded fabric has the essential character or shape of the
finished bed pads. In making this determination, CBP only needs to analyze the state of the
quilted bonded fabric as it is imported.
The quilted bonded fabric is not eligible for duty free treatment under subheading
9817.00.96, HTSUS. We affirm NY N344168 on this issue.
Sincerely,
Monika R. Brenner, Chief
Valuation & Special Programs Branch
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