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HQ 085016


September 19, 1989

CLA-2 CO:R:C:G 085016 JLJ, 842548

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.43.0090

Ms. Ann Williams
A.N. Deringer, Inc.
30 West Service Road
Champlain, New York 12919-9703

RE: Adult brief

Dear Ms. Williams:

You requested a tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for an adult brief manufactured in Canada by your client, Textiles Absorb-Plus Inc. of Quebec, Canada. You suggest classification as an article specially designed or adapted for the use or benefit of physically or mentally handicapped persons other than the blind, in subheading 9817.00.96, HTSUSA. You submitted a sample and descriptive literature.

FACTS:

The adult brief, Style 2105, is similar to underpants which snap on. It has an elasticized waistband and leg openings with adjustable side snaps. The brief contains an insert to contain urine and feces from incontinent patients. The brief is made of one layer of 80 percent cotton and 20 percent polyester, several layers of 60 percent polyester and 40 percent rayon felt, and a layer of 100 percent polyester knit backing, laminated to vinyl.

ISSUE:

Is the adult brief eligible for classification as an article specially designed or adapted for the use or benefit of physically or mentally handicapped persons other than the blind in subheading 9817.00.96, HTSUSA?

LAW AND ANALYSIS:

Presidential Proclamation 5978 of May 12, 1989, provided for certain duty-free provisions in the HTSUSA which gave effect to the Nairobi Protocol (S. Treaty Doc. 97-2). Subheading

9817.00.96, HTSUSA, was one of these provisions. It provides for other articles specially designed or adapted for the use or benefit of physically or mentally handicapped persons other than the blind.

You argue that the instant merchandise is specially designed for use by people who are unable to care for themselves. You do not identify any special design features.

Your client's president argues that incontinence is a problem for a great majority of mentally handicapped, physically handicapped and old age patients. He concludes that this product is used only by mentally or physically handicapped people or by old people.

Incontinent people are unable to control their bodily functions. While the adult briefs would help incontinent people, we see no absolute correlation between being mentally or physically handicapped and being incontinent. 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 classification in subheading 9817.00.96, HTSUSA, must be denied for the adult brief inasmuch as it is neither specially designed nor adapted for handicapped people.

The adult brief is classifiable under the provision for other garments, women's or girls: of man-made fibers: other, in subheading 6211.43.0090, HTSUSA, dutiable at the rate of 17 percent ad valorem. Articles classified in this subheading are subject to textile category number 659. Articles originating in Canada and classified in this subheading are eligible for a duty rate of 15.3 percent ad valorem under the United States-Canada Free Trade Agreement (CFTA) if all applicable regulations are met.

HOLDING:

The adult brief is classified in subheading 6211.43.0090, HTSUSA. Since it is manufactured in Canada, it is eligible for the reduced duty rate under the CFTA.

Sincerely,

John Durant, Director

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