OT:RR:CTF:VS H313315 tmf
Mr. William J. Mahoney
Sandler Travis and Rosenberg, P.A.
551 Fifth Avenue, Suite 1100
New York, NY 10176
RE: Articles for the handicapped; Subheading 9817.00.96; Quad Push Wheelchair Gloves
Dear Mr. Mahoney:
This is in response to your request dated August 4, 2020, on behalf of HTA Direct Sourcing (HTA), for a binding ruling concerning the eligibility of certain wheelchair gloves, identified as the “Quad Push Wheelchair Glove,” for duty-free treatment under 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The Quad Push Wheelchair Glove is made in two sizes: style 8299 for small/medium, which is suited for women and children; and Style 8309 for large/extra-large, which is suited for men. The gloves are constructed of durable goat leather with the exception of a portion of the back side, which is constructed of 93% polyester and 7% elastomeric fiber. The gloves are seamed, extend past the wrist and feature a partial enclosure for the thumb, a lining, a hook and loop closure at the wrist, and thick padding on the palm side from top to bottom. Except for a partial enclosure of the thumb, the gloves are fingerless, lacking a partial covering of the index, middle, ring or small fingers.
HTA’s glove is described as a “quad” glove because it is especially suited for use by high functioning quadriplegics who have limited use of their arms and hands. You gave us a sample of the merchandise for our review. You state that a key feature of the glove is that it can be completely opened for ease of donning by a handicapped person who has limited use of hands and arms. The thick padding of the glove is important to protect the handicapped user from abrasion and nerve injury stemming from wheelchair wheel rolling, braking and transferring to and from the wheelchair when the handicapped person’s weight is concentrated on the palm and wrist. The length of the glove extends beyond the palm area to the wrist area which provides support to the wrist during wheelchair transfer.
You state that your client is a vendor of medical products to medical distributors and that these gloves will be sold exclusively to such distributors. You mentioned that this type of Quad Push glove is commonly sold by distributors of medical products and products specially designed and adapted for use by handicapped individuals. You provided examples of identical or similar HTA gloves that are directed for sale to the handicapped community through medical company websites.
ISSUE:
Whether the subject wheelchair gloves are 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 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:
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 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, 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 gloves 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.
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, we agree that the subject Quad Push gloves’ extra thick padding and extended wrist coverage protects the handicapped user’s palm and wrist areas from abrasion and nerve injury while pushing the wheelchair wheels and/or self-lifting during transfer to and from the wheelchair. The two features--the extra padding and extended wrist coverage would make these gloves unsuitable for general purpose sports use such as cycling. Both features would be uncomfortable and restrict the cyclist’s ability to grab the handlebars during rides. Further, the design feature that allows the gloves to be completely opened for ease of placement on the hand, would be less desirable for another use, such as weight lifting. Therefore, we believe that the Quad Push gloves design features are specially designed and adapted for handicapped persons who use the wheelchair principally for transportation. These gloves are not for intermittent or general-purpose sports use.
In addition, we found similar wheelchair gloves featuring designs as the subject gloves on the internet for sale directly to the handicapped community. Also, you state that the gloves will be sold to other medical distributors. In fact, when we searched for HTA, we were directly connected to the website for ATC Medical (ATC), which describes itself as “an internet-enabled, multi-channel distributor of medical, surgical and therapy supplies and equipment with over 40,000 discounted medical supplies.” See https://www.atcmedical.com/1003962/manufacturer.aspx. We also found identical gloves on the internet for sale directly to consumers. We reviewed the packaging label which describes the merchandise as “heavy duty wheelchair gloves.” Based on the gloves’ packaging coupled with how the goods are marketed and displayed for retail and distribution sales to medical equipment distributors and directly to the handicapped community, we believe the instant Quad Push wheelchair gloves would be imported into the U.S. for sale exclusively to the handicapped community. Therefore, we find the Quad Push Gloves’ two styles (8299 and 8309) are adaptive articles of subheading 9817.00.96, HTSUS.
HOLDING:
Item style numbers 8299 (small) and 8309 (large/extra-large) Quad Push gloves 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.”
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