H312746

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H312746 November 13, 2020 OT:RR:CTF:VS H312746 tmf CATEGORY: Classification 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 mad

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 anyperson 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 la