OT:RR:CTF:VS H312746 tmf
Ms. Valerie Rangel Wuensche USA 801 Circle Avenue,
Forest Park, Illinois 60130
RE: Articles for the handicapped; Subheading 9817.00.96; Poncho; Pants; Shirt; Robe Dear Ms. Rangel:
This is in response to your request, dated June 15, 2020, for a binding ruling on the
eligibility of certain garments for duty-free treatment under 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS). There are five styles of men’s garments which are discussed below. Your ruling request was forwarded to our office from the National Commodity Specialist Division for our response.
FACTS:
The submitted sample, Item 20060 “Men’s Adaptive Poncho,” is a men’s poncho-like garment from China constructed of 60% polyester, 35% rayon, 5% spandex, knit fabric that is brushed on the inside surface. The garment features a hood with a drawstring, two grommets and a laced closure at the center front to secure the drawstring; it covers the elbows, and features a curved, hemmed bottom. The panel located at the front of the garment is 3½ inches longer than the panel located at the back. The back panel of the garment does not reach the waist. The requester states that this garment is ideal for wheelchair users as well as seniors and disabled individuals. In addition, the requester claims that a shorter back enables the garment to stay clear of wheels.
The submitted sample, Item 20058 “Men’s Easy Access Adaptive Pants,” is a pair of men’s pants that is assembled in China. It is constructed from 60% polyester, 35% rayon, 5%
spandex, finely knit fabric that is brushed on the inside surface. The garment features a fabric covered elastic waistband and side seam zippered openings with pull tags on each pant leg, a large patch pocket on the center left leg, and hemmed leg openings. The requester states that this garment is ideal for wheelchair users as well as individuals recovering from post hip or knee replacement surgery.
The submitted sample, Item 20056 “Men’s Adaptive Shirt,” is a men’s cut and sewn pullover constructed from 73% polyester, 22% rayon, 5% spandex, finely knit fabric from China. The fabric measures 16 stitches per two centimeters counted in the horizontal direction. The garment features a round neckline, a zippered opening with pull tabs at each side of the front panel, a zipper garage at the top of the neckline, long, hemmed sleeves, and a straight, hemmed bottom. The requester states that the garment is suitable for patients with ports for dialysis, chemotherapy, transfusions, and for individuals recovering from upper extremity conditions and surgeries.
The submitted sample, Item 20054 “Men’s Zip Front Easy Access Robe,” is a men’s robe. The robe is constructed from 100% cotton jersey knit fabric from China. The garment reaches the knee and features a round neckline, a full front metal zipper, long sleeves, a patch pocket at the left chest and side seam pockets. The requester states that the garment is suitable for patients with ports for dialysis, chemotherapy and other infusion therapy.
The submitted sample, Item 20052 “Reversible Hospital Robe,” is a men’s gown-like garment constructed from 95% rayon, 5% spandex, finely knit fabric that is made in China. The loose fitting garment reaches the knees and features self-fabric capping at the neckline, short, hemmed sleeves, and a straight, hemmed bottom. The garment has a back overlap and opening. The requester states that the garment is suitable for patients with ports for dialysis, chemotherapy and other infusion therapy.
ISSUE:
Whether the five styles of men’s garments 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.” 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 they fall 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.
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, 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 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, Slip Op. 18-69; 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 five styles of men’s garments 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 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, only Item 20060 (Men’s Adaptive Poncho) possesses one feature that distinguishes it from similar garments useful to the general public. The remaining four garments, which are discussed below, do not.
The Men’s Adaptive Poncho features a curved, hemmed bottom with the front panel measuring 3 1/2 inches longer than the rear panel which does not reach the wearer’s waist. This shorter, rear panel design prevents the poncho from becoming entangled with the wheelchair wheels. We believe that this shorter panel is a significant adaptation1, to render it an adaptive garment of subheading 9817.00.96, HTSUS. In addition, we found similar ponchos sharing the same design features as the subject poncho. The ponchos on the internet are directed for sale to the handicapped community.2 Based on our review of various internet websites that display similar ponchos as adaptive garments for use exclusively by the handicapped, we believe the instant Men’s Adaptive Poncho would be sold exclusively to the handicapped as well. Therefore, we find this poncho to be an adaptive garment of subheading 9817.00.96, HTSUS.
Regarding 20058 (Men’s Easy Access Adaptive Pants), you claim that this article is ideal for wheelchair users, as well as for individuals recovering from post hip or knee
2 See https://adaptiveclothingshowroom.com/search.php?search_query=ponchos§ion=product; https://www.adaptationsbyadrian.com/product-p/640.htm;
replacement surgery. This garment features side zippers on each side. We do not find this to be a significant adaptation that renders the garment only for use by handicapped persons.
Although you claim the side openings make it easy to accommodate a catheter or change an incontinence product, many pant designs feature dual openings on each pant leg. The subject Men’s Easy Access Adaptive Pants are not similar to the “Dual Side Opening Seated Pant” of HQ H303987, dated June 13, 2019 in which CBP found the pants to be adaptive merchandise within subheading 9817.00.96, HTSUS. In this case, the subject pant openings measure a few inches while the “Dual Side Opening Seated Pant” opened the complete length of each pant leg. We do not believe this feature is a significant adaptation.
Regarding Item 20056 (Men’s Adaptive Shirt), this garment does not possess any features which we find to be significant adaptations. You claim the two full frontal openings are suitable for patients for dialysis, chemotherapy, transfusions. We agree. However, such patients are not necessarily handicapped. Therefore, this design feature is not a significant adaptation that cannot be used by the general public.
Regarding both Item 20054 (Men’s Zip Front Easy Access Robe) and Item 20052 (Reversible Hospital Robe), these garments are designed for easy dressing but neither possess any significant adaptations or modifications that render them for use or benefit by handicapped persons. With both robe styles, their garment features are also found on mainstream robe designs. Further, these two robe styles do not have any design adaptations that differentiate these garments from standard hospital attire.
HOLDING:
Item 20060 (Men’s Adaptive Poncho) is eligible for 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.” Item 20058 (Men’s Easy Access Adaptive Pants), Item 20056 (Men’s Adaptive Shirt), Item 20054 (Men’s Zip Front Easy Access Robe) and Item 20052 (Reversible Hospital Robe) are not eligible for 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