H314980

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H314980 March 8, 2021 OT:RR:CTF:VS H314980 tmf CATEGORY: Classification Misoon Im 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

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