H328390

H328390 January 25, 2024 OT:RR:CTF:VS H328390 TMF CATEGORY: Classification CEE-Apparel, Footwear & Textiles U.S. Customs and Border Protection JFK Airport Building 77, Suite 20011430 Attn: Shelly Thalrose RE: Application for Further Review of Protest No. 4601-22-131262; men’s and women’s reusable incontinence briefs; handicapped articles of subheading 9817.00.96, HTSUS Dear Center Director: This is in response to an Application for Further Review (“AFR”) of Protest No. 4601-22-131262, timely filed by the law firm of Grunfeld Desiderio et al, (“Counsel”), on behalf of its client, the protestant, Seaward Int’l, Inc. This protest, which was received by your office June 14, 2022, contests the denial of duty-free treatment of certain men’s and women’s reusable incontinence briefs under subheading 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 blind or other physically or mentally handicapped persons . . . other.” The AFR was properly approved by the port. Our decision follows. FACTS: The merchandise at issue consists of four styles of men’s and women’s reusable incontinence briefs in which two samples, identified as style numbers 78156 and 71689 were provided to our office. Style Number Product Description Picture  78149 Ladies’ incontinence brief, 3 pack  
   78156 Ladies’ incontinence brief, 3 pack  
  71671 Men’s incontinence brief, 3 pack   71689 Men’s incontinence brief, 3 pack    Counsel states the products are marketed, designed, and sold as being highly absorbent and specifically designed for moderate to heavy incontinence protection. They are sold online by medical supply shops rather than pharmacies such as CVS or Duane Reade. The medical suppliers who sell these products include Dr. Leonards (www.drleonards.com), Support Plus (www.supportplus.com) and AmeriMark (www.amerimark.com), each of which primarily sell medical products and have sections dedicated specifically to “incontinence” products. The product descriptions and the marketing materials emphasize their intended use as incontinence products. ISSUE: Whether the subject reusable incontinence briefs 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 2017), 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 considered washable, breathable diapers used by men and women in hospitals) and HQ 557529, dated March 8, 1994 (which considered an institutional adult diaper ("diaper") designed to manage serious, chronic incontinence problems that was marketed to women.) In HQ 557529, the diaper and insertable pad were marketed to hospitals, nursing homes, and acute and sub-acute health care facilities. In analyzing the five factors adopted by the CAFC in Sigvaris and consistent with CBP precedent, we note that the instant garments are underwear, but not entirely leakproof. We tested the samples and although they do retain water and had a barrier for some leak protection, they are not leakproof or effective in keeping the skin dry if the user has chronic incontinence. Based on this, it is our opinion that the samples cannot retain high volumes of urine, which is experienced by handicapped persons who suffer from chronic incontinence throughout the day. In sum, it is not likely that a handicapped person with chronic incontinence would use this product. In the case of “stress incontinence,” if there is a small volume of urine, this does not make the subject garments “specially designed for the handicapped” as their design does not provide fo

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 2017), 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 physi