H304676

HQ H304676 March 26, 2020 OT:RR:CTF:VS H304676 tmf CATEGORY: Classification TARIFF NO.: 9817.00.96 Ms. Amy Smith Kohl’s N56 W17000 Ridgewood Drive Menomonee Falls, Wisconsin 53051 RE: Articles for the handicapped; Woman’s Knit Tank Top; Woman’s Knit Bodysuit; Girls’ Knit Pullover; Men’s Knit Upper Body Garment Dear Ms. Smith: This is in response to your request, dated June 21, 2019, for a binding ruling on the eligibility of four 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. The garments consist of a woman’s 60% cotton, 40% spandex knit tank top; a woman’s 96% cotton, 4% spandex knit bodysuit; a girls’ 65% polyester, 35% rayon knit pullover; and a men’s 50% polyester 50% cotton knit tank top. Your ruling request was forwarded to our office from the National Commodity Specialist Division for our response. FACTS: The requester provided a sample of Style JG93K53T, which has the brand name, “So Favorite Tank” screen printed on the inside of the shirt. This garment is a woman’s tank top constructed from 60% cotton, 40% spandex knit fabric. This sleeveless garment features a U-shaped front neckline, 1¼ inch wide shoulder straps, a U-shaped rear neckline below the nape of the neck, an opening at the front waist from side seam to side seam, and a straight hemmed bottom. The garment extends from the shoulders to below the waist. The requestor states this opening provides abdominal access for medical ports and feeding tubes. However, when worn the opening is not necessarily visible. The National Commodity Specialist provided a photo of the garment on a mannequin and the opening is not apparent. The garment merely appears to have a layered look. The woman’s bodysuit, Style JG93K53B, has the brand name, “So” screen printed on the inside of it. This garment is constructed from 96% cotton, 4% spandex knit fabric. The one-piece tightly fitted garment is legless and features short sleeves, a two snap closure at the right shoulder, a round front neckline, an eight snap closure at the front waist from side seam to side seam, a five snap closure on both sides extending across the midsection of the waist running along the sides of the hips without any opening at the crotch. The requestor states the abdominal snap closures provide access for medical ports and feeding tubes. Style DG93K51 has the brand name, “So” screen printed on the inside of the shirt. This long sleeve pullover is constructed from 65% polyester, 35% rayon knit fabric. The outer surface of the knit fabric which comprises this garment measures more than 9 stitches per 2 centimeters in the direction the stitches were formed. The pullover features a capped crew neckline, trim which forms a flare around the shoulder, long hemmed raglan sleeves, and a hemmed straight bottom. The garment extends to below the waist. The pullover also features an inner layer of fabric which “includes two 3 ¼ inch slits for abdominal access for medical ports and feeding tubes.” The men’s shirt, Style YU93K10 has the brand name, “Urban Pipeline” Authentic American Tradition Adaptive” screen printed on the inside of the shirt. This men’s garment is similar to a tank top and is constructed from 50% cotton, 50% polyester knit fabric that measures 30 stitches per two centimeters counted in the horizontal direction. The garment is sleeveless and features oversized armholes; shoulder straps that measure 2½ inches in width; a round front neckline; a rear neckline that falls below the nape of the neck; self-fabric capping at the neckline and armholes; two slits in the front panel that measure 4¼ inches in length, whose stated purpose is to allow access to the wearer’s abdominal area for the connection of medical ports and feeding tubes; and a straight, hemmed bottom. ISSUE: Whether the garments at issue, 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 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. 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:

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 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, theterm “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 “