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HQ 085094

May 10, 1990

CLA-2 CO:R:C:G 085094 CMR


TARIFF NO.: 9817.00.9600

William J. Maloney, Esq.
Rode & Qualey
295 Madison Avenue
New York, New York 10017

RE: Classification of underpads (bed diapers)

Dear Mr. Maloney:

This ruling is in response to your request, on behalf of Absorb-Plus Textiles Inc., for classification of underpads (bed diapers) used by individuals suffering from incontinence.


The articles at issue, styles 1111 and 1311 underpads (bed diapers) measure approximately 34 inches by 36 inches. The outer surface of the pads is composed of woven polyester base fabric which has been completely and visibly covered with green vinyl. The inner surface is a woven cotton/polyester blend fabric. The interlining is a nonwoven rayon based fabric. Style 1311 has a quilted lining.

The pads at issue may be used as brief garments when properly folded and secured while an individual is sitting, for instance, in a chair or wheelchair; or the briefs may be used as an "open" system of protection while an individual is in bed.

The underpads are sold principally to intermediate care facilities, nursing homes and chronic care facilities.


Are the subject underpads 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?


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 the underpads at issue are used by persons suffering from a permanent or chronic impairment, as opposed to an acute or transitory impairment.

The underpads are well-constructed, sturdy 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 the underpads at issue. 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 the articles meet the requirement for classification as articles designed for the use or benefit of handicapped persons as defined in Note 4.


The underpads at issue, styles 1111 and 1311, 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.

While this article is not subject to assessment of duty, this does not remove it from visa/quota requirements; however, as a product of Canada, it is not subject to visa/quota restrictions.

John Durant, Director
Commercial Rulings Division
6cc: Area Director, New York Seaport

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