OT:RR:CTF:VS H314980 tmf
Uniway Customs Services, Inc.
9111 S. La Cienega Blvd Inglewood, California 90301
RE: Articles for the handicapped; Subheading 9817.00.96; Women’s Shorts; Girl’s and Men’s Sweatshirts; Girl’s Cardigan
Dear Ms. Im:
This is in response to your request on behalf of Hansoll Textile LTD, 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). We received your request along with digital images of four styles of garments. The National Commodity Specialist Division forwarded your ruling request to our office for our response.
FACTS:
You state that all four garments have mock safety stitching to the outside and downwards with reverse ISO 4062N ¼ gg (knitting gauge) that is used to benefit individuals with skin disease like atopic dermatitis. All of the four garments have the word “adaptive” printed on the inside of the garment fabric.
Style JG93A502RJ is a pair of women’s shorts constructed of 60% cotton and 40% polyester knit fabric. The loose-fitting shorts are brushed on the inside and fall above the knee. The garment features a covered 3-inch elasticized waistband, with a functional outside drawstring, two slanted front pockets, self-fabric loops on both sides just below the waistband, and safety stitched leg openings.
Style DG01A558 is a girl’s cardigan constructed of 57% cotton, 38% polyester and 5% spandex knit fabric that is brushed on the inside. The garment is hip-length with a loose fitting hemmed bottom and features a hood with no lining, long sleeves with knit cuffs, front pockets, and a full front opening with a two-way zipper binding. The requestor refers to this style as “Girl’s Jacket.”
Style GJ93K169J is a girl’s sweatshirt constructed of 54% cotton and 46% polyester fleece knit fabric. The neck, sleeve and bottom trim is constructed of 58% cotton, 39% polyester and 3% spandex knit fabric. The garment extends below the waist and features a round neckline, long sleeves with knit cuffs, and a front kangaroo pouch on the body fabric of the sweatshirt. Under the kangaroo pouch there are two vertical porthole openings to allow abdomen access.
Style YU93K001RJ is a men’s sweatshirt constructed from 60% cotton, 40% polyester knit fabric that is brushed on the inside surface. The fabric measures 22 stitches per two centimeters counted in the horizontal direction. The garment features a self-fabric hood lined with jersey knit fabric, long sleeves with rib knit cuffs, a kangaroo pouch pocket below the waist, flatlock stitching at the seams, and a rib knit bottom. Under the center of the kangaroo pouch pocket, there is a horizontal slit on the body fabric of the sweatshirt to allow abdominal access. The label is screen printed on the garment and states “Urban Adaptive.”
ISSUE:
Whether the submitted 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.
Id.
* * *
. . . we must ask first, “for whose, if anyone’s, use and benefit is the article specially designed,” and then, “are those persons physically handicapped?”
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 that 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 four 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, the men’s and girl’s sweatshirts both possess opening features under the kangaroo pouch that distinguish these garments from mainstream sweatshirts useful to the general public. The girl’s sweatshirt has two vertical porthole openings under the kangaroo pocket for access to medical port lines.
Similarly, the men’s sweatshirt features a horizontal slit at the center front panel beneath the kangaroo pouch pocket, which also serves as an access opening for medical ports as well. These opening features render both garments to be specially designed for the benefit or use of handicapped persons. The general public would not likely want to wear this garment since it has openings in the pocket area that would actually allow anything stored in the pocket to fall through the openings. It is only because of the significant opening features that make this more likely for wear by a handicapped person.
In the case of the girl’s short’s and women’s cardigan, there are not any significant adaptations on these garments for a handicapped person. Although the seams and construction may be less irritating to the skin, mainstream public would likely benefit from this feature as well. In addition, we do not find that the shorts and cardigan meet any of the five factors outlined in the Nairobi Protocol, Annex E, to the Florence Agreement, found in T.D. 92- 77, supra.
In sum, Style GJ93K169J (girl’s sweatshirt) and Style YU93K001RJ (men’s sweatshirt) would likely be sold exclusively to the handicapped and are therefore, adaptive garments of subheading 9817.00.96, HTSUS.
HOLDING:
Style GJ93K169J and YU93K001RJ are 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.” Style JG93A502RJ (women’s
shorts), and Style DG01A558 (girl’s cardigan) are not eligible for subheading 9817.00.96, HTSUS.
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