OT:RR:CTF:VS H325692 tmf
Ms. Terra Duncan
Fruit of the Loom, Inc.
One Fruit of the Loom Drive
Bowling Green, Kentucky 42103
RE: Articles for the handicapped; Subheading 9817.00.96; AdaptABLE collection of six styles of underwear briefs
Dear Ms. Duncan:
This is in response to your request for a binding ruling on the eligibility of six styles of underwear briefs for duty-free treatment under 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS). The National Commodity Specialist Division forwarded your request to this office along with digital images for our review and determination.
FACTS:
You submitted six underwear brief styles for our consideration. There are six styles of underwear at issue: a women’s high cut underwear brief; a girls’ high cut underwear brief; a men’s brief; a boys’ brief; a men’s boxer brief; and a boys’ boxer brief. All are constructed of 54% cotton, 40% polyester, 6% spandex knit fabric with exposed elastic waistbands and elasticized leg openings. Each garment has two hook and loop closures that extend from the top of the waistband in the front torso area (women’s and girls’ briefs) or from the top of the waistband in the side area (men’s and boys’ briefs) and extends down to the leg area of the brief. The briefs are put on either by closing both the two hook and loop closures and pulling the brief straight up on the body, or by undoing both closures, laying the undergarment flat with sides laid out and the wearer wrapping the garment from back to front and closing it with the hook and loop closures.
You claim that the hook and loop closures allow for easy on and off. All six styles also feature a higher back rise, which affords the wearer seated coverage. Two styles, the “high cut” women’s and girls’ briefs, feature a higher leg cut providing comfort and range of motion. All of the briefs are part of the AdaptABLE collection, which includes designed undergarments that make dressing easier and more comfortable.
You state that the target consumers for the AdaptABLE collection are males and females ages five and up with limited mobility and a permanent or chronic physical disability. The wearer may require dressing assistance, and may be a wheelchair user, but the briefs may not solely be for wheelchair users. The garments will be advertised and sold primarily through the Fruit.com website and also on Amazon, Walmart, Target and Kohls, beginning September 2023.
ISSUE:
Whether the six underwear styles are eligible for duty-free treatment under subheading 9817.00.96, HTSUS, as “articles specially designed or adapted for the handicapped.”
LAW AND ANALYSIS:
The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials of 1982, Pub. L. No. 97-446, 96 Stat. 2329, 2346 (1983) established the duty-free treatment for certain articles for the handicapped. Presidential Proclamation 5978 and Section 1121 of the Omnibus Trade and Competitiveness Act of 1988, provided for the implementation of the Nairobi Protocol into subheadings 9817.00.92, 9817.00.94, and 9817.00.96, HTSUS.
Subheading 9817.00.96, HTSUS, covers: “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.” In Sigvaris, Inc. v. United States, 227 F. Supp 3d 1327, 1336 (Ct. Int’l Trade 2017), aff’d, 899 F.3d 1308 (Fed. Cir. 2018), the U.S. Court of International Trade (CIT) explained that “specially” means “to an extent greater than in other cases or towards others” and “designed” means something that is “done, performed, or made with purpose and intent often despite an appearance of being accidental, spontaneous, or natural.”
Subheading 9817.00.96, HTSUS, 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.” 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(a), Subchapter XVII, Chapter 98, HTSUS. While the HTSUS does not establish a clear definition of substantial limitation, in Sigvaris, 227 F. Supp 3d at 1335, the CIT explained that “[t]he inclusion of the word ‘substantially’ denotes that the limitation must be ‘considerable in amount’ or ‘to a large degree.’”
We must first evaluate “for whose, if anyone’s, use and benefit is the article specially designed,” and then, whether “those persons [are] physically handicapped[].” Sigvaris, 899 F.3d at 1314. The Court of Appeals for the Federal Circuit CAFC) clarified in Sigvaris, 899 F.3d at 1314-15 that to be “specially designed,” the 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” and adopted the five factors used by U.S. Customs and Border Protection (CBP): (1) physical properties of the article itself (e.g., whether the article is easily distinguishable in design, form and use from articles useful to non-handicapped persons); (2) presence of any characteristics 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) importation by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (4) sale in specialty stores that serve handicapped individuals; and (5) indication at the time of importation that the article is for the handicapped.
In HQ H321334 dated October 26, 2001, CBP found certain briefs and boxer undergarments that featured hook and loop closures on both sides to be distinguished from typical brief/boxer undergarments in that the hook and loop features could provide donning of the undergarment without needing to put one’s legs and feet through the leg openings and then pulling the garment up. In HQ H321334, it was noted that the front panels of the undergarments detached and provided incontinence management, access to catheters, and ease in toileting, for example. Since CBP found the hook and loop features to be significant adaptations, CBP found the merchandise to be articles for the handicapped in subheading 9817.00.96, HTSUS.
In analyzing the five factors adopted by the CAFC in Sigvaris and consistent with CBP precedent, we note that the instant six undergarments are also distinguishable from ordinary briefs and underwear. First, the subject AdaptABLE garments feature two hook and loop closures on the front torso area or side area of the brief. There is also a higher back rise and lower front rise, which we find to be significant adaptations as well. In HQ H303987 dated June 3, 2019, CBP ruled that an outerwear garment, the “Dual Side Opening Pant”, which featured a lower front rise, a higher back rise and full length, side openings, was an article for the handicapped within subheading 9817.00.96, HTSUS.
Although Fruit of the Loom is not known as a recognized manufacturer or distributor of garments for the handicapped, this does not per se disqualify the subject undergarments from being eligible for subheading 9817.00.96, HTSUS. You state that the marketing and advertising is currently under development. We searched the Internet and reviewed the U.S. website, www.fruit.com website which did not contain the subject garments. However, we found similar undergarments featuring similar hook and loop side closures (e.g., hook and loop or hook and eye snaps) that were advertised as adaptive underwear for the handicapped community.
On balance, the five factors adopted by the CAFC in Sigvaris, 899 F.3d at 1314-15, weigh in favor of a determination that the subject undergarments are “specially designed” for the use or benefit of physically handicapped persons to an extent greater than for the general public. Accordingly, we find the six undergarments are “specially designed” for “the use or benefit of … physically … handicapped persons” and are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
HOLDING:
Based on the information provided, the six underwear styles: a women’s high cut underwear brief; a girls’ high cut underwear brief; a men’s brief; a boys’ brief; a men’s boxer brief; and a boys’ boxer brief are eligible for subheading 9817.00.96, HTSUS, which provides for “articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons . . . other.”
Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by [CBP] field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based.
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Monika R. Brenner, Chief
Valuation and Special Programs Branch