Subheading 9817.00.96, HTSUS; women’s brief styled panties

HQ H092545 April 28, 2010 CLA-2 OT:RR:CTF:VS H092545 EE CATEGORY: Classification Christopher Garcia Kuehne + Nagel, Inc. 8200 Boggy Creek Rd #600 Orlando, FL 32824 RE: Subheading 9817.00.96, HTSUS; women’s brief styled panties Dear Mr. Garcia: This is in reply to your letter, dated May 29, 2009, on behalf of Berkshire Axis Innovations, Inc. (“Berkshire”), concerning the applicability 9817.00.96, Harmonized Tariff Schedule of the United States (“HTSUS”), to certain women’s brief styled panties. FACTS: The merchandise at issue consists of women’s brief styled panties. In New York Ruling Letter (“NY”) N059151, dated May 29, 2009, U.S. Customs and Border Protection (“CBP”) determined that the women’s brief styled panties are classified under subheading 6108.22.90, HTSUS. NY N059151, dated May 19, 2009, provided, in pertinent part, the following facts: The women’s brief styled panties are constructed of 80% nylon and 20% lycra knit fabric. The undergarment is used for moisture management problems associated with light incontinence (minor leakage). The reusable brief features a triple layered absorbency pad which is sewn into the lined crotch panel to store liquids and wick moisture away from the body. The middle portion of the front panel is of two-ply construction, with the inner ply made of a knitted net fabric. Additional features include an elasticized fabric covered waistband, an elasticized fabric covered bottom which borders the sides, back and crotch area of the leg openings, an elasticized back center seam, and high cut leg openings. Literature provided indicates the briefs will be available in 3-5 different styles and marketed and sold under the trade name "Stride." The strideeveryday.com website advertises five different styles of panties with “light leak protection,” including the French cut brief, the mid rise brief, the seamless, the lacy thong, and the sport bikini panty. The panties are offered in a variety of colors. The website describes the collection as a way to “say goodbye to pantiliners.” The special OQUOS technology is described as three layers that wick away moisture, deodorize, and absorb up to an ounce of moisture. A quiz is also available on the website to determine if the panties are right for you. The package shows intended use for the panties such as sport activities, pre and post-natal use, and protection for loss of urine when sneezing or coughing. ISSUE: Whether the women’s brief styled panties are eligible for duty-free treatment under subheading 9817.00.96, HTSUS. LAW AND ANALYSIS: The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials (“Florence Agreement”) adopted by UNESCO in November 1976, broadened the scope of the Florence Agreement by removing some of its restrictions on articles otherwise entitled to duty-free status, and by expanding the Agreement to embrace technologically new articles and previously uncovered works of art, films, etc. One major new category of articles is: “all materials specially designed for the education, employment and social advancement of other physically or mentally handicapped persons…” Protocol to the Agreement on the Importation of Educational, Scientific, and Cultural Materials annex E (ii), opened for signature March 1, 1977, 1976 U.S.T. LEXIS 388. Thus, the Protocol is intended to afford duty-free treatment not only for articles for the blind, but all other handicapped persons without regard to the source of their affliction. The 97th Congress passed Pub. L. 97446 to ratify the Nairobi Protocol in the United States. 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 dutyfree 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. 97564, 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 (Pub. L. no. 100-418, 102 Stat. 1107) 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 provide that “[a]rticles specially 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), subchapter XVII, Chapter 98, HTSUS, which establishes limits on classification of products in these subheadings, 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.” CBP 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), subchapter XVII, Chapter 98, HTSUS. See Headquarters Ruling Letter ("HQ") HQ W562506, dated October 28, 2002; HQ 560278, dated October 7, 1997; HQ 960056, dated January 30, 1997; HQ 558958, dated March 25, 1996. In several rulings, CBP noted an article published as a National Institutes of Health Consensus Development Conference Statement, Vol. 7, #5, October 3-5, 1988, by the U.S. Government Printing Office stating that “urinary incontinence, the involuntary loss of urine so severe as to have social and/or hygienic consequences, is a major clinical problem and a significant cause of disability and dependency." See HQ 085094, dated May 10, 1990; HQ 085092, dated May 10, 1990; HQ 085798, dated April 18, 1990; HQ 085691, dated April 18, 1990. In HQ 563008, dated May 20, 2004, CBP held that disposable incontinence pads worn by adults inside underwear, available in “three levels of protection: day regular, day plus and night super,” were not eligible for duty-free treatment under subheading 9817.00.96, HTSUS, since the protestant had not shown that the articles were more likely to be used by persons with chronic incontinence. The question, therefore, is whether the panties under consideration are used by those who have a permanent or chronic impairment, or instead, by those who have an acute or transient disability. Similar to HQ 563008, dated May 20, 2004, in the instant case, you have not submitted evidence that the panties at issue are principally used by individuals with permanent or chronic incontinence to the degree noted by CBP. The panties themselves are unpersuasive. As previously noted, the strideeveryday.com website advertises five different fashionable panty styles. In HQ 556532, dated June 18, 1992, CBP stated that “there is no restriction on articles for the handicapped being “stylish.” However, in the instant case, neither the advertisement submitted with your request nor the website suggest that the panties are used for chronic incontinence protection. We recognize that it is a question of degree since these panties certainly absorb more than “regular” panties, but contain and absorb much less than “institutional adult diapers.” The panties hold up to an ounce of fluid, which approximates about two tablespoons. As in HQ 563008, dated May 20, 2004, we do not find this amount so severe as to be a significant cause of disability and dependency to show that the panties would more likely be used by persons with chronic incontinence. Moreover, Berkshire markets the merchandise to pharmacy retailers such as Duane Reade, Super D Drug Store, and Ike's, which sell products to the general public. Based on these factors, we find that the women’s brief styled panties are not designed for the use of individuals suffering from permanent or chronic incontinence and therefore are not entitled to duty-free treatment under 9817.00.96, HTSUS. HOLDING: Based upon the information before us, we find that the women’s brief styled panties are not eligible for duty-free treatment under subheading 9817.00.96, HTSUS. Reference to this ruling letter should be made in the entry documents filed at the time the subject goods are entered. See CBP Form 7501 - Instructions, Additional Data Elements (available online at: www.cbp.gov). If the entry summary has been filed without reference to this ruling letter, the ruling letter should be brought to the attention of the appraising officer at the port of entry. Sincerely, Monika R. Brenner Chief Valuation & Special Programs Branch