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HQ 085175

October 20, 1989

CLA-2 CO:R:C:G 085175 JLJ, 842817


TARIFF NO.: 3926.20.5050

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.


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.


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
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.


The plastic pants are classified in subheading 3926.20.5050, HTSUSA.


John Durant, Director

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