HQ 085978: Classification of medical stretch briefs of knit polyester/spandex fabric

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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
                               -2-


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
                               -3-


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

6cc: Area Director, New York Seaport
1cc: CITA
1cc: Legal Reference Section
1cc: Phil Robins