H313315

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H313315 February 18, 2022 OT:RR:CTF:VS H313315 tmf CATEGORY: Classification 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 

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, 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 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.