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HQ 087669


November 16, 1990

CLA-2 CO:R:C:G 087669 DDR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6304.92.0000

Mr. Randy Jachman
Project Strategies Network, Inc.
P.O. Box 21524
Pikesville, Maryland 21208

RE: Medical bed pad classifiable as other furnishing article

Dear Mr. Jachman:

This is in reference to your undated letter received July 19, 1990, and in further reference to your letter of March 8, 1990, requesting the classification of medical bed pads under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue is represented by a sample of a medical bed pad and fabric swatches. The 3-ply swatch is made of one layer of 100 percent woven cotton, one layer of 100 percent non-woven polyester, and a third layer of vinyl. The 2-ply swatch does not have the middle layer of polyester. The 4-ply, full sized pad is made of polyethylene plastic, a paper lining, and non-woven cotton fiber and cover, is disposable. The pads will be manufactured in and imported from Hong Kong and/or the People's Republic of China. According to your second letter, the estimated production costs are $0.12 per disposable pad and $1.25 per reusable pad. You further state that the pads will be used in nursing homes and hospitals for incontinent patients.

ISSUE:

What is the proper classification of the merchandise at issue?

LAW AND ANALYSIS:

Classification under the HTSUSA is in accordance with the General Rules of Interpretation (GRI), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

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(a), Chapter 98, states that 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 oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working.

In order to be classifiable under subheading 9817.00.9600, HTSUSA, the item in question must also be used for treatment of a chronic or permanent condition. The bed pads in question do not appear to be designed for repeated, long term wear and, like many other incontinence care products, are disposable. Although they will be used in nursing homes and hospitals, there is no evidence to support a finding that these products will be used for patients who suffer from chronic or permanent incontinence. It is therefore Customs opinion that these articles do not meet the requirements of Note 4 and are therefore not classifiable under subheading 9817.00.9600, HTSUSA.

According to GRI 3(b), mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, shall be classified as if they consisted of the material or component which gives them their essential character. The Explanatory Notes to the HTSUSA may be consulted for guidance as to the correct international interpretation of the various HTSUSA provisions. The Explanatory Notes state that "the factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

In light of the fact that the bed pads are made up of different materials, we must next determine the essential character in order to classify the item in accordance with GRI 3(b). Each element, i.e., each layer of cotton, polyester or vinyl, is necessary to the design and function of the article. Therefore, no one layer can be said to give the combination its essential character. Accordingly, classification of the item at issue is determined by GRI 3(c). The bed pads are therefore classifiable under whichever heading appears last in numerical order among those which merit consideration. The competing applicable provisions for the two and three layer pads are Heading 3926 and Heading 6304, HTSUSA. The competing applicable provisions for the four layer pad are Heading 3926, Heading 4818, and Heading 6304. Subheading 6304.92.0000, HTSUSA, provides for other furnishing articles, not knitted or crocheted, of cotton. Subheading 6304.93.0000, HTSUSA, provides for other furnishing articles, not knitted or crocheted, of synthetic fibers.

HOLDING:

The two and three layer medical bed pads in question are classified under subheading 6304.92.0000, HTSUSA, as other furnishing articles, not knitted or crocheted, of cotton, with a duty rate of 7.2 percent ad valorem and subject to textile visa category 369. The four layer medical bed pad in question is classified under subheading 6304.93.0000, HTSUSA, as other furnishing articles, not knitted or crocheted, of synthetic fibers, with a duty rate of 10.6 percent ad valorem and subject to textile visa category 666.

Due to the changeable nature of the statistical annotation and the restraint (quota/visa) categories applicable to textile merchandise, the importer should contact the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and
changes, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Sincerely,

John Durant, Director

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