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HQ 085407


November 30, 1989

CLA-2 CO:R:C:G 085407 JLJ 842297

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9050

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

RE: Inserts for Adult Briefs

Dear Ms. Williams:

You requested a reconsideration of New York letter 842297 of July 10, 1989, on behalf of your client, Med-I-Pant Inc. That letter held that inserts for adult briefs made in Canada were not eligible for duty-free entry under the provision for articles specially designed or adapted for the use or benefit of physically or mentally handicapped persons other than the blind, in subheading 9817.00.96, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

Five types of inserts for adult briefs are involved. Styles 730M and 730SP, Adult Brief Inserts, are made of 90 percent cotton and 10 percent man-made textile fabric and 100 percent cotton woven fabric, respectively. Style 730M measures approximately 19 inches long by 16 inches wide. Style 730SP measures approximately 21 inches long by 14 inches wide. Extra layers of woven fabric are sewn down the center length of the articles.

Styles 711-XS, 711 and 711-T, Med-I-Liner Inserts, are made of three layers of fabric and measure approximately 15- 3/16 inches long by 6-1/2 inches wide, 25-1/2 inches long by 8- 1/8 inches wide, and 21-13/16 inches long by 10-1/2 inches wide, respectively. All three styles are 60 percent polyester, 30 percent vinyl and 10 percent cotton.

New York letter 842297 rejected the possibility of classifying these articles in subheading 9817.00.96, HTSUSA, because they had no design features dedicating them for use by permanantly or chronically disabled people. All five inserts were classified under the provision for other made up articles of textile materials, other, other, other, in subheading 6307.90.9050, HTSUSA.

ISSUE:

Are the inserts for adult briefs eligible for classification as articles 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 with incontinence and should be classified in subheading 9817.00.96, HTSUSA.

In a brochure put out by your client entitled Med-I-Pant In-Service Manual, the following information appears under a section called "The Myths and Facts of Incontinence:"

Myth-- Incontinent people are feeble and unable to live normal lives.

Fact-- Many incontinent people are otherwise healthy, both physically and mentally, and lead productive, active lives.

Myth--Incontinent people are mentally retarded.

Fact--Because retardation is sometimes part of the condition which causes incontinence, there are those people who are incontinent and are also mentally retarded. However, many intelligent, active people are incontinent due to physical reasons alone. These people are business professionals, homemakers and those active in community affairs. Incontinence does not mean incompetence.

Incontinent people are unable to control certain bodily functions. While the inserts for adult briefs would help incontinent people, we see no absolute correlation between being mentally or physically handicapped and being incontinent. As the brochure cited states, 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, is inappropriate for the inserts for adult briefs inasmuch as they are neither specially designed nor adapted for handicapped people.

All five inserts are classifiable under the provision for other made up articles of textile materials, in subheading 6307.90.9050, HTSUSA, dutiable at the rate of 7 percent ad valorem. Merchandise originating in Canada and classifiable in this subheading is eligible for a 6.3 percent duty rate under the United States-Canada Free Trade Agreement if all applicable regulations are met.

HOLDING:

The inserts for adult briefs are not eligible for classification in subheading 9817.00.96, HTSUSA. The inserts are classified in subheading 6307.90.9050, HTSUSA.

Sincerely,

John Durant, Director

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