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HQ 964725




May 3, 2001

CLA-2 RR:CR:GC 964725 AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.20

David Mayer, President
Mayer Laboratories, Inc.
646 Kennedy Street, Building C
Oakland, CA 94606

RE: Female Condoms made of polyurethane

Dear Mr. Mayer:

This is in reference to your letter, dated November 27, 2000, requesting a ruling on the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of female condoms made of polyurethane. You state that the product has previously been subject to tariff under subheading 3926.90.20, HTSUS, the provision for "[O]ther articles of plastics and articles of other materials of headings 3901 to 3914 [O]ther; Ice bags; douche bags, enema bags, colostomy bags, hot water bottles, and fittings therefor; invalid and similar nursing cushions; crutch tips and grips; dress shields; finger cots; pessaries; prophylactics; sanitary belts; bulbs for syringes; syringes (other than hypodermic syringes) and fittings therefor, not in part of glass or metal." You request a review of this ruling. A diligent search has revealed that no formal ruling has been issued by Customs on the matter. We will therefore respond to your inquiry in the form of a ruling.

FACTS:

The merchandise is a female condom, designed to provide contraception and protection from sexually transmitted diseases, including HIV (AIDS). It consists of a polyurethane sheath with two flexible rings. An inner ring is used to aid in insertion, and an outer ring enables the sheath to cover the labia, thereby providing more protection to the wearer. ISSUE:

The classification of female condoms made of polyurethane under the HTSUS.

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context that requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are (official interpretation of the Harmonized System at the international level) generally indicative of the proper interpretation of the HTSUS. See T.D. 8980, 54 Fed. Reg. 35127 (August 23, 1989).

The following HTSUS subheadings are relevant to the classification of this product:

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:

3926.90 Other:

3926.90.20 Ice bags; douche bags, enema bags, colostomy bags, hot water bottles, and fittings therefor; invalid and similar nursing cushions; crutch tips and grips; dress shields; finger cots; pessaries; prophylactics; sanitary belts; bulbs for syringes; syringes (other than hypodermic syringes) and fittings therefor, not in part of glass or metal

4014 Hygienic or pharmaceutical articles (including nursing nipples), of vulcanized rubber other than hard rubber, with or without fittings of hard rubber:

4014.10.00 Sheath contraceptives

Using GRI 1, heading 3926, HTSUS, describes articles of plastic and heading 4014, HTSUS, describes articles of rubber. At GRI 6, the eight-digit subheadings both provide eo nomine for female condoms either as prophylactics or sheath contraceptives. Hence, both female and male condoms made of rubber would be classified in heading 4014, HTSUS, and both female and male condoms made of plastic, or polyurethane, would be classified in heading 3926. HOLDING:

Female condoms made of polyurethane are classified in subheading 3926.90.20, HTSUS, the provision for "[O]ther articles of plastics and articles of other materials of headings 3901 to 3914 [O]ther; Ice bags; douche bags, enema bags, colostomy bags, hot water bottles, and fittings therefor; invalid and similar nursing cushions; crutch tips and grips; dress shields; finger cots; pessaries; prophylactics; sanitary belts; bulbs for syringes; syringes (other than hypodermic syringes) and fittings therefor, not in part of glass or metal".

Sincerely,

John Durant, Director

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