CLA-2-61:OT:RR:NC:N3:348
Ms. Angela Santos
Grunfeld, Desiderio, Lebowitz
Silverman, Klestadt, LLP.
399 Park Avenue
25th Floor
New York, NY 10022
RE: The tariff classification of garments from Mexico.
Dear Ms. Santos:
In your letter dated May 15, 2013, on behalf of your client, J.T. Posey Company, you requested a classification ruling. The samples are being returned to you, as requested.
The “Shorts” (6007A) is a pair of unisex shorts that are composed of 50% cotton and 50% polyester knit fabric. The shorts feature a fully elasticized waistband through which an inner drawstring is threaded, two patch pockets and hemmed legs openings. Each panel of the leg incorporates a pocket that contains a foamed plastic pad that offers the wearer protection to the hip area.
The “Sweatpants” (6009A) is a pair of unisex pants that are composed of 50% cotton and 50% polyester knit fabric. feature a fully elasticized waistband through which an inner drawstring is threaded, two patch pockets and elasticized ankle cuffs. Each panel of the leg incorporates a pocket that contains a foamed plastic pad that offers the wearer protection to the hip area.
The “Incontinent Brief” (6017S) is a pair of unisex briefs that are composed of 97% cotton and 3% spandex knit fabric. The briefs measure approximately 12 ½ inches from the top of the exposed elasticized waistband to the bottom of the hemmed leg openings. The briefs feature a fly opening. Each panel of the leg incorporates a pocket that contains a foamed plastic pad that offers the wearer protection to the hip area.
The “Male Fly Brief” (6018S) is a pair of men’s briefs that are composed of 97% cotton and 3% spandex knit fabric. The briefs measure approximately 12 ½ inches from the top of the exposed elasticized waistband to the bottom of the hemmed leg openings. Each panel of the leg incorporates a pocket that contains a foamed plastic pad that offers the wearer protection to the hip area.
The ”EZ-On Brief” (6019/6019H) is an article worn on the person that is intended to offer padded protection to the hip area. Although referred to as a “brief,” it does not function as an undergarment. It features a crotchless design that allows users to wear their own undergarments. It is constructed with an elastic waistband and textile panels that fit over the hip area and that are held in place by means of an elastic band around the leg. Each panel incorporates a pocket that contains a foamed plastic pad. The textile component consists of 97 percent cotton and 3 percent spandex. The mesh fabric is water-permeable so that the wearer need not remove the product during bathing. The textile component functions strictly as a means to hold the two plastic pads in position, one over each hip. It is the plastic padding that performs the function for which the product is intended. The foam plastic padding imparts the essential character to the product.
All merchandise, described above, will be imported in sizes Small through XX-Large.
The applicable subheading for the Shorts (6007A) and Sweatpants (6009A) will be 6114.30.3070, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other garments, knitted or crocheted: of man-made fibers: other, other: women’s or girls’. The rate of duty will be 14.9% ad valorem.
The applicable subheading for the Incontinent Briefs (6017S) will be 6114.20.0060, HTSU, which provides for other garments, knitted or crocheted: of cotton, other: women’s or girls’. The rate of duty will be 10.8 percent ad valorem.
The applicable subheading for the Male Fly Briefs (6018S) will be 6114.20.0055, HTSU), which provides for other garments, knitted or crocheted: of cotton, other: men’s or boys’. The rate of duty will be 10.8 percent ad valorem.
The applicable subheading for the EZ-On Brief (6019/6019H) will be 3926.90.9980, HTSUS, which provides for other articles of plastics, other. The general rate of duty will be 5.3 percent ad valorem.
Regarding your claim of duty free treatment under 9817.00.96, HTSUS, for these items, you state, “(A)pproximately 69% of these products are sold to long term care facilities (nursing homes, Veteran Affairs, or long term rehabilitation facilities).” Individual sales could also be for home use for those with a “permanent or chronic” handicap in terms of HTSUS Chapter 98, Subchapter 17, U.S. Note 4-a.
The large, thick pads in each item are intended to reduce the severity of the effects of a fall (more exactly, the blow from the hard surface that will be hit) that might occur during routine walking, climbing steps, etc. They are much more likely to be useful to someone with a pre-existing medical condition which either makes the effects of a fall significantly worse than usual (as in osteoporosis) and/or which makes falls significantly more likely (as in diseases affecting equilibrium.)
From our review of various internet sites, we believe that the probability of their use by the general public, i.e., people who do not have a medical condition, is negligible. It appears that even a substantial percent of those for whom these or similar items are recommended by a physician do not wear them on a regular basis because of the inconvenience, etc. Their relatively high cost further makes it unlikely that they would be used by the general public. The pads are clearly for their “use or benefit.”
Osteoporosis is irreversible and conditions affecting equilibrium (including dementia) are often so. Also, it seems unlikely that someone with a short term equilibrium problem would adapt to wearing these as opposed to just staying in bed, being helped while walking, etc. Consistent with your statistics, they do not seem to be used to any significant extent for acute patients in short term hospitals, for example. We thus consider the handicap to be “permanent or chronic” for Note 4-a.
On that basis, we agree that a secondary classification will apply for these items in 9817.00.96, HTSUS, as specially designed or adapted for the use or benefit of the permanently or chronically, physically or mentally handicapped (except articles for the blind), free of duty and user fees (if any). Note that the requirement that the importer prepare and file a U.S. Department of Commerce form ITA-362P has been eliminated via a notice from the International Trade Administration, published in the Federal Register of June 1, 2010. Also note that this classification has no effect on any quota, visa, or restricted merchandise requirements or countervailing or dumping duties.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
If you have any questions specifically regarding the classification in 9817.00.96 of this item, contact National Import Specialist J. Sheridan at 646-733-3012. If you have any questions specifically regarding the classification under subheading 3926.90.9980, HTSUS, please contact National Import Specialist Joan Mazzola at 646-733-3023. If you have any other questions, including regarding the classification under heading 6114, HTSUS, please contact National Import Specialist Rosemarie Hayward at 646-733-3064.
Sincerely,
Thomas J. Russo
Director
National Commodity Specialist Division