U.S. Department of Homeland Security
Washington, DC 20229
U.S. Customs and Border Protection
HQ H318562 July 20, 2022
OT:RR:CTF:VS H318562 tmf
Pacific Alliance USA, Inc.
350 Fifth Avenue 11th Floor
New York, NY 10118
RE: Articles for the handicapped; Subheading 9817.00.96; Ladies’ Tunic Top Dear Ms. Baggett:
This is in response to your request, dated March 23, 2021, supplemented on
April 22, 2021, for a binding ruling on the eligibility of a tunic top, identified as style JUF20KT0096, for duty-free treatment under subheading 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS). Your ruling request was sent to us from the National Commodity Specialist Division for our response.
FACTS:
The garment is constructed of 60% organic cotton; 27% bamboo (rayon) and 3% elastane knit. Style JUF20KT0096 is a women’s long sleeved tunic top which consists of three panels: one front panel and two back panels that overlap each other and are secured by two magnetic closures at the top of each shoulder. The overlapping back panels are otherwise open, except for the magnetic shoulder closures, for ease of dressing. In addition to the rear opening of the garment, there is rouching built into the sleeves with elastic that helps to keep the sleeves in place when pushed up. This is intended to prevent the sleeves from getting caught on or dirtied by wheelchair wheels.
A size medium sample of the garment was provided to our office, along with PDF images of the garment, a tech pack with details, and a copy of the garment’s hangtag. The garment will be sold on a Facebook website, Juniper Unltd., which you state is a site geared towards persons with disabilities. You provided screenshots of the website for our review. You intend to import the goods through the U.S. port of entry in Los Angeles, California.
You claim the garment is designed for people with permanent disabilities, such as with limited dexterity due to arthritis or Parkinson’s disease, enabling the wearer to dress themselves with ease. If the individual is a paraplegic or quadriplegic, the design enables the caregiver to dress the person from a seated position.
ISSUE:
Whether the subject ladies’ tunic is eligible for duty-free treatment under subheading 9817.00.96, HTSUS, as an “article specially designed or adapted for the handicapped.”
LAW AND ANALYSIS:
Subheading 9817.00.96, HTSUS, provides for:
Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for use in the foregoing articles . . . Other.
Subheading 9817.00.96 excludes “(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.” U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS.
Accordingly, eligibility within subheading 9817.00.96, HTSUS, depends on whether the merchandise is “specially designed or adapted for the use or benefit of the blind or physically and mentally handicapped persons,” and whether it falls within any of the enumerated exclusions. See Subheading 9817.00.96, HTSUS; U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS. Note 4(a) to Chapter 98, HTSUS, provides:
(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 limits one or more major life activities, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working.
See U.S. Note 4(a), Subchapter XVII, Chapter 98, HTSUS.
This list of exemplar activities indicates that the term “handicapped persons” is to be liberally construed so as to encompass a wide range of conditions, provided the condition substantially interferes with a person’s ability to perform an essential daily task. While the HTSUS and subchapter notes do not provide a proper definition of “substantial” limitation, the inclusion of the word “substantially” denotes that the limitation must be “considerable in amount” or “to a large degree.”
In the Court of Appeals for the Federal Circuit’s decision in Sigvaris, Inc. v.
United States, 899 F.3d 1308 (Fed. Cir. 2018), the court found that the Court of International Trade reached the correct conclusion in finding the merchandise at issue therein, compression stockings, not eligible for subheading 9817.00.96, HTSUS, treatment, but the court disagreed with the lower court’s analysis. The court found that the Court of International Trade looked to the condition or disorder and whether it is a handicap. The court stated:
The plain language of the heading focuses the inquiry on the “persons” for whose use and benefit the articles are “specially designed,” and not on any disorder that may incidentally afflict persons who use the subject merchandise.
* * *
. . . we must ask first, “for whose, if anyone’s, use and benefit is the article specially designed,” and then, “are those persons physically handicapped?”
Id.
The language of subheading 9817.00.96, HTSUS, states that the provision provides for “articles specially designed or adapted” for the use or benefit of the physically handicapped. The design and construction of an article may be indicative of whether it is specially designed or adapted for the use or benefit of the handicapped.
The HTSUS does not establish a clear definition of what constitutes “specially designed or adapted for the use or benefit” of handicapped persons. In the absence of a clear definition, the Court of the International Trade stated that it may rely upon its own understanding of the terms or consult dictionaries and other reliable information. See Danze, Inc. v. United States, 319 F. Supp. 3d 1312 (Ct. Int’l Trade 2018). Moreover, in analyzing this same provision in Sigvaris v. United States, the Court of International Trade construed these operative words as follows:
The term “specially” is synonymous with “particularly,” which is defined as “to an extent greater than in other cases or towards others.” [Webster’s] at 1647, 2186
. . . The dictionary definition for “designed” is something that is “done, performed, or made with purpose and intent often despite an appearance of being accidental, spontaneous, or natural.” [Webster’s] at 612 . . . .
See Sigvaris, 227 F. Supp. 3d 1327, 1336 (Ct. Int’l Trade 2017). See also, Sigvaris 899 F.3d 1308, wherein the Court of Appeals for the Federal Circuit cited the definitions relied upon by the Court of International Trade in Sigvaris, in concluding that “articles specially designed for handicapped persons must be made with the specific purpose and intent to be used by or benefit handicapped persons rather than the general public.” The Court of Appeals for the Federal Circuit refined this requirement which it found to be incomplete. The court concluded that:
to be “specially designed,” the subject merchandise must be intended for the use or benefit of a specific class of persons to an extent greater than for the use or benefit of others.
Id.
Finally, the legislative history further aids our analysis of these terms as used in subheading 9817.00.96, HTSUS. 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 stated, in relevant part:
By providing for duty-free treatment of articles specially adapted for the blind or other physically or mentally handicapped persons, the committee does not intend that an insignificant adaptation would result in duty-free treatment for an entire relatively expensive article. Otherwise, the special tariff category will create incentives for commercially motivated tariff-avoidance schemes and pre-import and post-entry manipulation. Rather, the committee intends that, in order for an entire modified article to be accorded duty-free treatment, the modification or adaptation must be significant, so as clearly to 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. Similarly, in Danze, the court looked to the legislative history and noted that its interpretation of the terms “specially” and “designed” in Sigvaris comported with the legislative intent behind subheading 9817.00.96, HTSUS, that any modification or adaptation be “significant.”
CBP has recognized several factors to be utilized and weighed against each other on a case-by-case basis when determining whether a particular product is “specially designed or adapted” for the benefit or use of handicapped persons. See
U.S. Customs Serv. Implementation of the Duty-Free Provisions of the Nairobi Protocol, Annex E, to the Florence Agreement, T.D. 92-77, 26 Cust. B. & Dec. 240, 241 (1992) (“Implementation of the Nairobi Protocol”) at 243-244. These factors include: (1) the physical properties of the article itself (i.e., whether the article is easily distinguishable by properties of the design, form, and the corresponding use specific to this unique design, from articles useful to non-handicapped persons); (2) whether any characteristics are present that create a substantial probability of use by the chronically
handicapped so that the article is easily distinguishable from articles useful to the general public and any use thereof by the general public is so improbable that it would be fugitive; (3) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped;
(4) whether the articles are sold in specialty stores which serve handicapped individuals; and, (5) whether the condition of the articles at the time of importation indicates that these articles are for the handicapped. See also Danze, 319 F. Supp. 3d 1312 (Ct. Int’l Trade 2018); Sigvaris, 227 F.Supp.3d 1327, aff’d, 899 F.3d 1308. The Court of Appeals for the Federal Circuit in Sigvaris, 899 F.3d. 1308, found that “[t]hese factors aid in assessing whether the subject merchandise is intended for the use or benefit of a specific class of persons to a greater extent than for the use or benefit of others.” The court adopted these factors into its analysis.
Looking to the court’s analysis in Sigvaris, 899 F.3d 1308, CBP must first examine for whose use and benefit the subject tunic is “specially designed,” and whether such persons are physically handicapped. In other words, we must consider whether such persons are suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities. In this case, the life activity for each garment that is “specially designed” is the ability to dress oneself.
With regard to the first two factors to consider in determining whether an article is “specially designed,” i.e., the physical properties of the article and any characteristics of the article that easily distinguish it from articles useful to the general public, you argue that the tunic’s features (the complete opening in conjunction with the shoulder magnets and rouching) distinguishes the tunic from similar garments useful to the general public.
We reviewed the sample, and the tunic back consists of two back panels which overlap each other and are otherwise completely open for ease of dressing. As the court in Sigvaris, 899 F.3d 1308 (Fed. Cir. 2018), stated, we must consider for whose benefit the article is specially designed and whether the article is intended for the use or benefit of a specific class of persons to an extent greater than for the use or benefit of others. In this case, the overlapping back panels coupled with the shoulder magnets are significant adaptations that render the tunic to be an adaptive garment of subheading 9817.00.96, HTSUS. While CBP has determined in Headquarters Ruling Letter (HQ) H300660, dated February 27, 2019, that “magnetic closures for garments have become mainstream in their use,” and fashionable and trendy as seen on several websites, Id.1 we believe the subject tunic’s magnets are useful as they facilitate closure of the tunic at the top of the overlapping back panels. The placement of the magnets on the garment at the top of the shoulder in conjuction with the overlapping back panels makes the subject tunic specially designed and sold for use by the handicapped community. We reviewed several tunic styles, and we find that overlapping back panels are not a common style in mainstream tunics. As the overlapping back panels are useful for ease of dressing, we agree that this feature
1 Id. “As the use of magnets for closures in garments has become mainstream, we do not view their use to be a significant adaptation to a garment such that the use of a garment with such closures would be more prevalent among the handicapped or disabled, as opposed to the general public.”
creates “a substantially greater probability of use by the handicapped versus the general public.” Id. Further, while the rouching may prevent the sleeves from getting caught on or dirtied by the wheelchair wheel, we do not believe that the rouching feature alone is a significant adaptation since rouching features are commonly used in the design of mainstream garments; however, in conjunction with the overlapping back panels, this adds to the adaptions made to the tunic.
As to the remaining factors we consider in determining whether an article qualifies as “specially designed or adapted,” you state the subject tunic will be imported and sold on Juniper Unltd., a Facebook website that describes itself as “an inclusive content hub, ecommerce marketplace, and community that uplifts everyone’s voice.” We notice that there are handicapped people advertised on the website. Although Juniper Unltd. is not a recognized manufacturer or distributor involved in the class or kind of articles exclusively for the handicapped community, this factor does not preclude the goods classification as articles for the handicapped. Therefore, we find the tunic may be considered an adaptive garment eligible for subheading 9817.00.96, HTSUS, treatment.
HOLDING:
Style JUF20KT009620060, a ladies’ tunic is eligible for duty-free treatment within subheading 9817.00.96, HTSUS, which provides for as “articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons . . . other.”
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy of this ruling, it should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Monika R. Brenner, Chief
Valuation and Special Programs Branch