H321334

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection 
 HQ H321334 October 26, 2021 OT:RR:CTF:VS H321334 CMR CATEGORY: Classification Ms. Susanne L. Shoemaker Undercare Inc. 40 Memorial Highway, 39PHB New Rochelle, NY 10801 RE: Applicability of Subheading 9817.00.96, HTSUS, to certain garments; Nairobi Protocol; Articles for the Handicapped Dear Ms. Shoemaker: This is in response to your request, dated August 15, 2021, for a ruling on the eligibility of five 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. Your ruling request has been forwarded to our office for a response. FACTS: You have submitted five garments for our consideration. The garments consist of underwear garments for women and men, and a women’s swimsuit. The garments are all designed so that a wearer may don a garment without putting feet and legs through leg openings. Style 88765, “Men's Classic Brief,” is a men’s underwear brief constructed of 95% cotton/5% spandex knit fabric. The brief is a one-piece garment which has an hourglass-like shape, when laid flat, with the top half larger than the bottom half. The brief is put on by wrapping the two ends of the elastic waistband, featuring hook and loop tabs, around the waist, like a belt, and attaching the hook and loop tabs together at the navel. The wearer then pulls the front panel (hanging down in back) between the legs from the back to the front pulling the panel upward to the waist and matching and attaching the hook and loop tabs on the right and left sides of the wrap around the piece on the body. The brief features an exposed elasticized waistband measuring approximately 1-1/8 inches wide, and a two-ply center front panel with an open fly front. The brief, once on, can be pulled up and down in one connected piece or you can pull off the front panel for easy access and toileting. Style 77654, “Unisex Woven Boxer,” is an underwear boxer constructed of woven 100% cotton fabric and sold to both men and women. The boxer, like the men’s classic brief, is a one-piece garment which, when laid flat, has a squared hourglass shape with the top and bottom halves connected by a thin strip of fabric. The boxer is put on by wrapping the two ends of the waistband which have hook and loop closures around the waist and fastening the hook and loop tabs together at the navel. The wearer pulls the front panel through the legs from the back to the front and fastens hook and loop tabs on the right and left sides of the front panel to matching tabs on the right and left sides of the wrap around piece. The boxer features a covered elasticized full waistband measuring approximately 1-1/4 inches wide, an open fly front and hemmed leg openings. The boxer, once on, can be pulled up and down in one connected piece or you can pull off the front panel for easy access and toileting. Style 66543, “Women's Midrise Brief,” is a women’s underwear brief constructed of 95% cotton/5% spandex knit fabric. The brief is a one-piece garment which has an hourglass-like shape when laid flat, with the top half larger than the bottom half. The brief is put on by locating the two ends of the waist band, wrapping the two ends around the waist, and fastening hook and loop tabs together at the navel. The wearer pulls the front panel through the legs from the back to the front and fastens the hook and loop tabs on the right and left sides of the front panel to the matching tabs on the right and left sides of the wrap around the piece. The brief has a lined gusset and an elasticized picot trim sewn to the waist edges and leg opening edges of the garment. The brief, once on, can be pulled up and down in one connected piece or you can pull off the front panel for easy access and toileting. Style 76622, “Men’s Knit Boxer Brief,” is a men’s underwear boxer brief constructed of 95% cotton/5% spandex knit fabric. The brief is a one-piece garment which, when laid flat, has a squared hourglass shape with the top and bottom halves connected by a thin strip of fabric. The boxer is put on by wrapping the two ends of the waistband which have hook and loop closures around the waist and fastening the hook and loop tabs together at the navel. The wearer pulls the front panel through the legs from the back to the front and fastens hook and loop tabs on the right and left sides of the front panel to matching tabs on the right and left sides of the wrap around the piece. The boxer features an exposed elasticized waistband measuring approximately 1-1/8 inches wide, a two-ply center front contour pouch and hemmed leg openings. The boxer, once on, can be pulled up and down in one connected piece or you can pull off the front panel for easy access and toileting. Style 82246, “Women’s One-Piece Swimsuit,” is a women’s one-piece swimsuit constructed from 80% polyester/20% elastane knit fabric. The swimsuit is put on by sliding one’s arms through the armholes like putting on a vest; attaching the S-hook at the neckline to hold the top of the suit together; locking the two sides of the zipper chamber; grabbing the zipper pull tab and pulling upward, closing the zipper. Then, the wearer pulls through the panel hanging down in back and brings it between the legs from the back to the front and upwards to the waist matching and attaching the hook and loop tabs on the right and left sides underneath the flattering skirt. The top portion of the swimsuit features adjustable shoulder straps, a scoop neck, and a built-in shelf bra. Once on, a wearer can pull open the hook and loop bottom without taking off the top for easy access and toileting. All of the submitted garments are advertised on the Undercare.com website as: “Easy-on and easy-off for people with disabilities and caregivers.” The website advertises that one can put the garments on standing, sitting or lying down without putting one’s feet and legs through leg openings. In addition, these garments are described as “easy to put on independently and take off quickly.” The website also states: “If you're recovering from surgery, have difficulty bending, have dexterity issues, or use a wheelchair, our underwear and swimwear is designed just for you.” Further, it states: “If you have a catheter post-surgery, or use one regularly, ordinary underwear is hard to manage. But Undercare Velcro briefs and boxers provide fast, easy access without having to disrobe.” In your submission, you state that these garments are all of patented designs that do not require the wear to bend, balance or stand on one leg in order to put on the garments. The submitted hangtags for the garments describe the undergarments as “Stylish adaptive innerwear.” You also indicated that these garments may be found for sale on the following websites, in addition to the Undercare website: www.facebook.com/undercareinc www.instagram.com/undercareinc www.juniperunltd.com www.zappos.com/e/adaptive.com www.everyhuman.com.au Further, you submitted a powerpoint presentation regarding the brand strategy and target audience for your products. ISSUE: Whether the garments at issue, described above, 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 disable

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.” See 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.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