OT:RR:CTF:VS H321334 CMR
Ms. Susanne L. Shoemaker
Undercare Inc.
40 Memorial Highway, 39PHB
New Rochelle, NY 10801
RE: Applicability of Subheading 9817.00.96, HTSUS, to certain garments; Nairobi Protocol; Articles for the Handicapped
Dear Ms. Shoemaker:
This is in response to your request, dated August 15, 2021, for a ruling on the eligibility of five garments for duty-free treatment under 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS), which provides for, among other things, articles specially designed or adapted for the use or benefit of the physically or mentally handicapped. Your ruling request has been forwarded to our office for a response.
FACTS:
You have submitted five garments for our consideration. The garments consist of underwear garments for women and men, and a women’s swimsuit. The garments are all designed so that a wearer may don a garment without putting feet and legs through leg openings.
Style 88765, “Men's Classic Brief,” is a men’s underwear brief constructed of 95% cotton/5% spandex knit fabric. The brief is a one-piece garment which has an hourglass-like shape, when laid flat, with the top half larger than the bottom half. The brief is put on by wrapping the two ends of the elastic waistband, featuring hook and loop tabs, around the waist, like a belt, and attaching the hook and loop tabs together at the navel. The wearer then pulls the front panel (hanging down in back) between the legs from the back to the front pulling the panel upward to the waist and matching and attaching the hook and loop tabs on the right and left sides of the wrap around the piece on the body. The brief features an exposed elasticized waistband measuring approximately 1-1/8 inches wide, and a two-ply center front panel with an open fly front. The brief, once on, can be pulled up and down in one connected piece or you can pull off the front panel for easy access and toileting.
Style 77654, “Unisex Woven Boxer,” is an underwear boxer constructed of woven 100% cotton fabric and sold to both men and women. The boxer, like the men’s classic brief, is a one-piece garment which, when laid flat, has a squared hourglass shape with the top and bottom halves connected by a thin strip of fabric. The boxer is put on by wrapping the two ends of the waistband which have hook and loop closures around the waist and fastening the hook and loop tabs together at the navel. The wearer pulls the front panel through the legs from the back to the front and fastens hook and loop tabs on the right and left sides of the front panel to matching tabs on the right and left sides of the wrap around piece. The boxer features a covered elasticized full waistband measuring approximately 1-1/4 inches wide, an open fly front and hemmed leg openings. The boxer, once on, can be pulled up and down in one connected piece or you can pull off the front panel for easy access and toileting.
Style 66543, “Women's Midrise Brief,” is a women’s underwear brief constructed of 95% cotton/5% spandex knit fabric. The brief is a one-piece garment which has an hourglass-like shape when laid flat, with the top half larger than the bottom half. The brief is put on by locating the two ends of the waist band, wrapping the two ends around the waist, and fastening hook and loop tabs together at the navel. The wearer pulls the front panel through the legs from the back to the front and fastens the hook and loop tabs on the right and left sides of the front panel to the matching tabs on the right and left sides of the wrap around the piece. The brief has a lined gusset and an elasticized picot trim sewn to the waist edges and leg opening edges of the garment. The brief, once on, can be pulled up and down in one connected piece or you can pull off the front panel for easy access and toileting.
Style 76622, “Men’s Knit Boxer Brief,” is a men’s underwear boxer brief constructed of 95% cotton/5% spandex knit fabric. The brief is a one-piece garment which, when laid flat, has a squared hourglass shape with the top and bottom halves connected by a thin strip of fabric. The boxer is put on by wrapping the two ends of the waistband which have hook and loop closures around the waist and fastening the hook and loop tabs together at the navel. The wearer pulls the front panel through the legs from the back to the front and fastens hook and loop tabs on the right and left sides of the front panel to matching tabs on the right and left sides of the wrap around the piece. The boxer features an exposed elasticized waistband measuring approximately 1-1/8 inches wide, a two-ply center front contour pouch and hemmed leg openings. The boxer, once on, can be pulled up and down in one connected piece or you can pull off the front panel for easy access and toileting.
Style 82246, “Women’s One-Piece Swimsuit,” is a women’s one-piece swimsuit constructed from 80% polyester/20% elastane knit fabric. The swimsuit is put on by sliding one’s arms through the armholes like putting on a vest; attaching the S-hook at the neckline to hold the top of the suit together; locking the two sides of the zipper chamber; grabbing the zipper pull tab and pulling upward, closing the zipper. Then, the wearer pulls through the panel hanging down in back and brings it between the legs from the back to the front and upwards to the waist matching and attaching the hook and loop tabs on the right and left sides underneath the flattering skirt. The top portion of the swimsuit features adjustable shoulder straps, a scoop neck, and a built-in shelf bra. Once on, a wearer can pull open the hook and loop bottom without taking off the top for easy access and toileting.
All of the submitted garments are advertised on the Undercare.com website as: “Easy-on and easy-off for people with disabilities and caregivers.” The website advertises that one can put the garments on standing, sitting or lying down without putting one’s feet and legs through leg openings. In addition, these garments are described as “easy to put on independently and take off quickly.” The website also states: “If you're recovering from surgery, have difficulty bending, have dexterity issues, or use a wheelchair, our underwear and swimwear is designed just for you.” Further, it states: “If you have a catheter post-surgery, or use one regularly, ordinary underwear is hard to manage. But Undercare Velcro briefs and boxers provide fast, easy access without having to disrobe.”
In your submission, you state that these garments are all of patented designs that do not require the wear to bend, balance or stand on one leg in order to put on the garments. The submitted hangtags for the garments describe the undergarments as “Stylish adaptive innerwear.” You also indicated that these garments may be found for sale on the following websites, in addition to the Undercare website:
www.facebook.com/undercareinc
www.instagram.com/undercareinc
www.juniperunltd.com
www.zappos.com/e/adaptive.com
www.everyhuman.com.au
Further, you submitted a powerpoint presentation regarding the brand strategy and target audience for your products.
ISSUE:
Whether the garments at issue, described above, are eligible for duty-free treatment under subheading 9817.00.96, HTSUS, as articles 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.” See U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS.
Accordingly, eligibility within subheading 9817.00.96, HTSUS, depends on whether the article in question 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 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. 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, 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, Slip Op. 18-69 (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 at 1336. See also, Sigvaris, Inc. v. United States, 899 F.3d 1308 (Fed. Cir. 2018), wherein the court 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.
Sigvaris, 899 F.3d 1308.
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 v. United States, 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, Inc. v. United States, Slip Op. 18-69 (Ct. Int’l Trade 2018); Sigvaris, Inc. v. United States, 227 F.Supp.3d 1327 (Ct. Int’l Trade, 2017), aff’d, 899 F.3d 1308 (Fed. Cir. 2018). The court in Sigvaris, 899 F.3d. 1308 (Fed. Cir. 2018), 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 (Fed. Cir. 2018), we must first examine for whose use and benefit the garments at issue are “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 which these garments are claimed to be “specially designed” is dressing oneself.
With regard to the first two factors to consider in determining whether articles are “specially designed,” i.e., the physical properties of the articles and any characteristics of the articles that easily distinguish them from articles useful to the general public, we find that the articles at issue do possess design features that distinguish them from typical underwear and swimwear used by the general public, i.e., the design of these garments to allow donning them without needing to put one’s legs and feet through leg openings and then pulling the garments up. However, we must determine whether this design adaptation is significant. In this case, we believe it is.
Typical underwear marketed to the public requires the wearer to put their feet and legs through leg openings and then pull the garments up. The design of these garments as one-piece garments donned by wrapping the garments around the waist with the front portion pulled from the back to the front and attached to the front with hook and loop closures distinguishes them from underwear garments normally marketed to the general public. The same is true of the swimwear garment.
As to the remaining factors we consider in determining whether an article qualifies as “specially designed or adapted,” these garments are imported and sold by a company which describes itself on its website as “dedicated to enabling people with disabilities to dress and undress more easily.” They also state: “We want to help reduce the hassle of simple things like underwear, so you can get on with the joy of living!” Although the website also indicates that these garments may be used by individuals recovering from surgery or injuries, situations which are temporary in nature, it appears that such use may be considered a fugitive use, as the targeted market is clearly individuals with difficulties which arise to the level of disability when it comes to dressing oneself. These garments are expensive and not competitively priced compared to underwear marketed to the general public. In addition, while quite useful for someone who has difficulties putting on typical underwear, the hook and loop closures may prevent the wearer from wearing certain clothing because of the added bulk of the closures under outer garments.
Although not sold in specialty stores which serve the handicapped, it appears these garments are only being sold online at various websites at this time. A review of the websites cited by you reveals that the instant garments are offered for sale on websites that are directed at the disabled community. We note that at times they are also marketed alongside garments for the general public.
Finally, subheading 9817.00.96, HTSUS, does not cover articles for acute or transient disability. See U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS. Based upon the nature of the garments and the expense in purchasing them, we believe it is unlikely that an individual with a transient or acute disability would invest in garments such as the ones at issue, although they are advertised for use post-surgically. Additionally, while advertised for use by those with dexterity issues, we believe that if the dexterity issues are such that use of these garments is necessary, it is likely the dexterity issue would arise to a level that would be considered a handicap. We note that our assessment of use for transient or acute disability and use by the general public is based upon current information. However, should these garments prove to become popular and useful for transient conditions and for the general public, we may revisit our decision regarding their classification in subheading 9817.00.96, HTSUS.
HOLDING:
The garments at issue, Style 88765, “Men's Classic Brief;” Style 77654, “Unisex Woven Boxer;” Style 66543, “Women's Midrise Brief;” Style 76622, “Men’s Knit Boxer Brief;” and Style 82246, “Women’s One-Piece Swimsuit” are classifiable under subheading 9817.00.96, HTSUS, as “articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons . . . other.” The duty rate for articles classified under subheading 9817.00.96, HTSUS, is Free.
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