H313790

 HQ H313790 U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection September 29, 2022 OT:RR:CTF:VS H313790 TMF CATEGORY: Classification Mr. Jason Wapiennik Great Lakes Customs Law 32437 Five Mile Road Livonia, Michigan 48154 RE: Articles for the handicapped; Subheading 9817.00.96; SHERO Goodnight Leaks Thong, Bikini and Hipster Cut Panties Dear Mr. Wapiennik: This is in response to your request, dated March 26, 2020, for a binding ruling on the eligibility of certain women’s undergarments for duty-free treatment under 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS). Your request was forwarded along with digital images to this office for our review and determination by the National Commodity Specialist Division. FACTS: Style Goodbye Leaks Panty (bikini cut), Goodbye Leaks Thong (thong), Goodnight Leaks Panty (hipster cut) are all panties constructed from 87% nylon, 13% spandex knit fabric. The gusset linings are constructed of 92% polyester, 8% spandex. Counsel states that the polyester component is made of a special blend of 46% polyester and 46% bamboo charcoal yarn polyester. Under this lining is a layer of 100% polyester, which consists of a special blend of 52% polyester and 48% café (coffee grounds) polyester. Under that layer is a layer of 80% polyester, 20% spandex with a layer of polyolefin plastic as the outer bottom layer. The waist and leg openings are elasticized. Counsel claims the articles are designed for urinary incontinence and have gussets infused with natural bamboo and coffee fibers for odor control. In the submission, counsel states that the garments’ lab results indicated that in two hours, urine ammonia smell was reduced by 75.6%. The garments are described as leak proof, bacteria resistant, ultra-thin and breathable. They are designed for reuse. You state that all garments have a polyolefin plastic layer which serves as a waterproof barrier. You claim that the panty has the most leak protection because of the larger gusseted area, while the bikini is in second place and the thong in third place with the least amount of leak protection due to the smaller gusseted area due to the slimmer product cut. We reviewed the marketing and find that based on the retail box, it states that the product is for “every woman” and sold on Amazon and at Walmart. For the panty and thong styles, the packaging states: “Everyday use for urine leaks, light days or for extra protection during periods.” The back of the box states “We believe every woman should be free to leave pesky leaks and moisture behind and focus on what matters most. Whether you are leading a work meeting while on your period, enjoying an extra sweaty workout or experiencing one of those “pee a little when you sneeze” post childbirth moments, Shero has you covered. Ditch the stinky panty liners and confidently go through strong all day long.” You claim for classification as adaptive articles of subheading 9817.00.96, HTSUS, which provides, in pertinent part for articles for the handicapped and that the products are classified as Type 1 medical devices and registered with the Food & Drug Administration. ISSUE: Whether the three garments at issue are eligible for duty-free treatment under subheading 9817.00.96, HTSUS. LAW AND ANALYSIS: The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials of 1982, Pub. L. No. 97-446, 96 Stat. 2329, 2346 (1983) established the duty-free treatment for certain articles for the handicapped. Presidential Proclamation 5978 and Section 1121 of the Omnibus Trade and Competitiveness Act of 1988, provided for the implementation of the Nairobi Protocol into subheadings 9817.00.92, 9817.00.94, and 9817.00.96, HTSUS. Subheading 9817.00.96, HTSUS, covers: “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.” In Sigvaris, Inc. v. United States, 227 F. Supp 3d 1327, 1336 (Ct. Int’l Trade aff’d, 899 F.3d 1308 (Fed. Cir. 2018), the U.S. Court of International Trade (CIT) explained that “specially” means “to an extent greater than in other cases or towards others” and “designed” means something that is “done, performed, or made with purpose and intent often despite an appearance of being accidental, spontaneous, or natural.” Subheading 9817.00.96, HTSUS, 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. Thus, eligibility within subheading 9817.00.96, HTSUS, depends on whether the article 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 under U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS. 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.” U.S. Note 4(a), Subchapter XVII, Chapter 98, HTSUS. While the HTSUS does not establish a clear definition of substantial limitation, in Sigvaris, 227 F. Supp 3d at 1335, the CIT explained that “[t]he inclusion of the word ‘substantially’ denotes that the limitation must be ‘considerable in amount’ or ‘to a large degree.’” We must first evaluate “for whose, if anyone’s, use and benefit is the article specially designed,” and then, whether “those persons [are] physically handicapped [].” Sigvaris, 899 F.3d at 1314. The Court of Appeals for the Federal Circuit CAFC) clarified in Sigvaris, 899 F.3d at 1314-15 that to be “specially designed,” the 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” and adopted the five factors used by U.S. Customs and Border Protection (CBP): (1) physical properties of the article itself (e.g., whether the article is easily distinguishable in design, form and use from articles useful to non-handicapped persons); (2) presence of any characteristics 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) importation by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (4) sale in specialty stores that serve handicapped individuals; and (5) indication at the time of importation that the article is for the handicapped. ADA compliance alone is insufficient to show that an item is “specially designed” for handicapped under subheading 9817.00.96, HTSUS. See Danze, Inc. v. United States, 319 F. Supp. 3d 1312 (Ct. Int’l Trade 2018). Customs has determined in previous rulings that a person suffering from chronic incontinence is physically handicapped. See Headquarters Ruling Letter (HQ) 960056, dated January 30, 1997 which cites to two rulings that classified certain products as specially designed for the handicapped within subheading 9817.00.96 (see HQ 085691, dated April 18, 1990 which pertained to washable, breathable diapers used by men and women in hospitals) and HQ 557529, dated March 8, 1994 (which discussed an institutional adult diaper ("diaper") designed to manage serious, chronic incontinence problems that was marketed to women.) In HQ 55752

The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials of 1982, Pub. L. No. 97-446, 96 Stat. 2329, 2346 (1983) established the duty-free treatment for certain articles for the handicapped. Presidential Proclamation 5978 and Section 1121 of the Omnibus Trade and Competitiveness Act of 1988, provided for the implementation of the Nairobi Protocol into subheadings 9817.00.92, 9817.00.94, and 9817.00.96, HTSUS.Subheading 9817.00.96, HTSUS, covers: “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.” In Sigvaris, Inc. v. United States, 227 F. Supp 3d 1327, 1336 (Ct. Int’l Trade aff’d, 899 F.3d 1308 (Fed. Cir. 2018), the U.S. Court of International Trade (CIT) explained that “specially” means “to an extent greater than in other cases or towards others” and “designed” means something that is “done, performed, or made with purpose and intent often despite an appearance of being accidental, spontaneous, or natural.”Subheading 9817.00.96, HTSUS, 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. Thus, eligibility within subheading 9817.00.96, HTSUS, depends on whether the article 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 under U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS.The term “blind or other physically or mentally handicapped persons” includes “any person suffering from a permanent or chronic physical or m