CLA-2-61:OT:RR:NC:N3 348
Leslie Hanes
Discovery Trekking Outfitters Ltd.
919 Ironwood St Campbell River, BC V9W3E5
Canada
RE: The tariff classification of incontinent briefs from Canada
Dear Ms. Hanes:
In your letter dated March 24, 2023, you requested a tariff classification ruling. The samples will be returned as requested.
The submitted samples, Adult Swim Brief, Youth Swim Brief and Child Brief, are containment briefs used while swimming. The briefs are constructed from 93% polyester 7% spandex knit fabric coated with a polyurethane material that completely obscures the underlying fabric. The briefs feature a hook and loop closure on each side of the waist, an elasticized waist and leg openings. The briefs will be imported in various sizes: Adult Swim Brief XS - 5XL, Youth XS - 3XL and Child Swim Brief XS - 3XL.
Examination of the samples supports your contention that the containment briefs do not have any significant absorbent properties. That fact would exclude them from classification in heading 9619, Harmonized Tariff Schedule of the United States (HTSUS), which provides for diapers and similar articles. The product’s packaging also asserts, “although intended primarily for swimming, it can also be used as a diaper cover for day or night use.” It should be noted that diaper covers are also excluded from consideration in heading 9619, HTSUS.
The applicable subheading for Adult Swim Brief, Youth Swim Brief and Child Brief will be 6113.00.1012, HTSUS, which provides for “Garments, made up of knitted or crocheted fabrics of heading 5903, 5906 or 5907: Having an outer surface impregnated, coated, covered, or laminated with rubber or plastics material which completely obscures the underlying fabric, Other.” The rate of duty will be 3.8% ad valorem.
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/.
Regarding your claim of a secondary classification under HTSUS 9817.00.96, your information and samples support your claim that these items have significant special features for the use of adults with incontinence and are designed to be washed and repeatedly re-used.
The Agreement on the Importation of Educational, Scientific and Cultural Materials, known as the Florence Agreement, is an international agreement drafted by the United Nations Educational, Scientific, and Cultural Organization (UNESCO) and adopted by it in Florence, Italy, in July 1950 (17 UST 1835; TIAS 6129). It provides for duty-free treatment and the reduction of trade obstacles for imports of educational, scientific, and cultural materials in the interest of facilitating the international free flow of ideas and information. Materials falling within the coverage of the Florence Agreement include: books, publications and documents; works of art and collector’s pieces; visual and auditory materials; scientific instruments and apparatus; and articles for the blind.
The Nairobi Protocol to the Florence Agreement on the Importation of Educational, Scientific, and Cultural Materials Act of 1982 expanded the scope of the Florence Agreement primarily by expanding duty-free treatment for certain articles for the use or benefit of the handicapped in addition to providing duty-free treatment for articles for the blind. The 97th Congress passed Pub. L. 97-446 to ratify the Nairobi Protocol in the U.S. The Senate stated in its Report that one of the goals of this law was to benefit the handicapped and show U.S. support for the rights of the handicapped. The Senate, however, did state that it did not intend “that an insignificant adaptation would result in duty-free treatment for an entire relatively expensive article... the modification or adaptation must be significant so as to clearly render the article for use by handicapped persons.” S. Rep. No. 97-564, 97th Cong. 2nd Sess. (1982). The Senate was concerned that persons would misuse this tariff provision to avoid paying duties on expensive products.
Section 1121 of the Omnibus Trade and Competitiveness Act of 1988 and Presidential Proclamation 5978 provided for the implementation of the Nairobi Protocol by inserting permanent provisions, subheadings 9817.00.92, 9817.00.94, and 9817.00.96, into the HTSUS. These tariff provisions specifically state that “articles specifically designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons” are eligible for duty-free treatment.
U.S. Note 4(a), Subchapter XVII, Chapter 98, HTSUS, states that 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.
U.S. Note 4(b), chapter 98, HTSUS, states that 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.
Customs has previously held that a person suffering from permanent or chronic incontinence is physically handicapped as that term is defined in U.S. Note 4(a) to Subchapter XVII. See Headquarters Ruling Letter ("HRL") 085092, dated May 10, 1990, and HRL 085094, dated May 10, 1990. Therefore, persons who suffer from permanent or chronic incontinence are considered handicapped within the meaning of U.S. Note 4(a).
Headquarters Ruling Letter 563008 KSG, 5-20-04, in distinguishing disposable incontinence products, affirmed the CBP position that reusable underwear designed for incontinence is presumed to be likely used by those with chronic incontinence,
The incontinent briefs are specially designed or adapted for the use or benefit of handicapped persons. Adult Swim Brief, Youth Swim Brief and Child Brief are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
This ruling is being issued under the provisions of Part 177 of the Customs and Border Protection Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, please contact National Import Specialist Rosemarie Hayward at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division