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HQ 085978


March 7, 1990

CLA-2 CO:R:C:G 085978 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.22.0010

Mr. Gary Brunell
A. N. Deringer, Inc.
30 West Service Road
Champlain, New York 12919-9703

RE: Classification of medical stretch briefs of knit polyester/spandex fabric

Dear Mr. Brunell:

This ruling is in response to your letter of November 7, 1989, on behalf of Cascades PSH Inc., requesting the classification of medical stretch briefs made in West Germany.

FACTS:

The submitted samples are knit stretch briefs made from 91 percent polyester and 9 percent spandex. The principal market for this product is adults and children affected by incontinence problems. The briefs are worn with disposable incontinence pads which are designed to be worn with a brief to help keep the pad in place. The briefs are intended for very limited repetitive use as it is not recommended to wash them. They should be disposed of after a limited time or when they become soiled.

ISSUE:

Are the knit stretch briefs at issue classifiable in subheading 9817.00.96, HTSUSA, which provides for articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons?

LAW AND ANALYSIS:

Classification of products 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, and provided
such headings or notes do not otherwise require, according to [the remaining GRIs taken in order].

Chapter 98, Subchapter XVII, U.S. Note 4(a) and (b) must be considered in determining if articles are classifiable in subheading 9817.00.96, HTSUSA. The Note states as follows:

(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.

Reading the heading in accordance with U.S. Note 4, the articles at issue here, the stretch briefs, must be specially designed or adapted for the use or benefit of individuals suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities in order to be classified in subheading 9817.00.96, HTSUSA. Articles for an acute or transient disability are not classifiable in that subheading.

No evidence has been submitted to Customs that the briefs at issue are principally used by individuals with permanent or chronic incontinence as opposed to individuals suffering from acute or transient incontinence. The briefs themselves are unpersuasive. In fact, the advertisement submitted with your request states at the top, "Security in Stretch Briefs, the right choice for incontinence and feminine care pads." Customs believes this indicates these briefs may be used with products other than incontinence pads.

Customs is presently reconsidering the ruling referred to in your letter in which it was stated that "Incontinence in and of itself is not a physical handicap...". A ruling on the products at issue therein will be issued shortly. Without addressing the
issue here of whether incontinence in and of itself constitutes a handicap, Customs is not persuaded that the briefs at issue here are designed or adapted for the use or benefit of individuals suffering from permanent or chronic incontinence. Therefore, these articles are not classifiable in subheading 9817.00.96, HTSUSA.

HOLDING:

The knit stretch briefs at issue are classifiable in subheading 6108.22.0010, HTSUSA, which provides for women's or girls' knit briefs and panties of man-made fibers, disposable briefs and panties designed for one-time use. The briefs are dutiable at 16.6 percent ad valorem.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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