H346874

H346874 ACH CATEGORY: Classification TARIFF NO.: 9817.00.96 Michelle Campbell Catalyst Customs Brokers, Inc. 160 Bartlett Plaza Bartlett, IL 60103 RE: Applicability of Subheading 9817.00.96, HTSUS; Effortless Bra and Adaptive Underwear Dear Ms. Campbell: This is in response to your request, on behalf of Springrose Inc., dated March 14, 2025 , for a binding ruling regarding the eligibility of Effortless Bra and Adaptive Underwear for subheading 9817.00.96, Harmonized Tariff Schedule of the United States (“HTSUS”), treatment. A sample of the product was provided to the National Commodity Specialist Division. Our ruling is set forth below. FACTS: Springrose designs apparel exclusively for women with disabilities, including those that suffer from stroke, amputations, arthritis, and fibromyalgia. The company maintains a distributor agreement with Pisces Healthcare and partners with clinicians (including physical and occupational therapists) to design their garments for patients with physical impairments. A review of their website indicates that they are only selling adaptive bras for women with limited mobility. The Style 3.1 “Effortless Bra” is double layered and features a front magnetic multi-clasp closure; adjustable elasticized shoulder straps, which can be worn in a racerback style; elasticized edging along the neckline, armhole and top back; and an adjustable hook and eye closure. The bra also features patent-pending finger pockets to assist in latching and unlatching the front magnetic closure and can feature mastectomy pockets for artificial breast forms. The Style 4.1 “Adaptive Underwear” is a woman’s bikini panty featuring adjustable magnetic closures on both sides, which allow the front panel to be lowered so the wearer can put on the underwear without stepping into it and pulling it up. Springrose used models with leg and arm amputations in the visual materials provided to CBP. ISSUE: Whether the Effortless Bra and Adaptive Underwear imported by Springrose are eligible for duty-free treatment under subheading 9817.00.96, HTSUS. LAW AND ANALYSIS: 1. The Effortless Bra and Adaptive Underwear are Eligible for Duty-free Treatment under Subheading 9817.00.96, HTSUS. 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 (CIT 2017), aff’d, 899 F.3d 1308 (Fed. Cir. 2018), the U.S. Court of International Trade (“CIT”) explained that: The term “specially” is synonymous with “particularly,” which is defined as “to an extent greater than in other cases or towards others.” Webster’s Third New International Dictionary 1647, 2186 (unabr. 2002). 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 Third New International Dictionary 612 (unabr. 2002). 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 2 inclusion of the word ‘substantially’ denotes that the limitation must be ‘considerable in amount’ or ‘to a large degree.’” CBP must evaluate “for whose, if anyone’s, use and benefit is the article specially designed.” Sigvaris, Inc. v. United States, 227 F. Supp 3d 1327, 1336 (C.I.T. 2017), aff’d, 899 F.3d 1308 (Fed. Cir. 2018). In other words, we must consider whether such persons are suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities. The Court of Appeals for the Federal Circuit (“CAFC”) clarified 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. This definition of ‘specially designed’ is consistent with factors that Customs uses in discerning for whose use and benefit a product is ‘specially designed” … we adopt them in our analysis ….” Id. at 1314-15. In Danze, Inc. v. United States, 319 F. Supp. 3d 1312, 1326 n.22 (CIT 2018), the CIT held that ADA compliance alone was insufficient to show that an item was “specifically designed or adapted” for the handicapped under subheading 9817.00.96, HTSUS. To determine whether the Effortless Bra and Adaptive Underwear are “specially designed” for the use or benefit of a class of persons to an extent greater than for others, CBP must examine the following five factors adopted by the CAFC in Sigvaris, 899 F.3d at 1314-15: (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. See also T.D. 92-77 (26 Cust. B. 240 (1992)). Analysis of the five Sigvaris factors shows that the Effortless Bra and Adaptive Underwear are specially designed for the use of the handicapped. Since these articles feature magnetic multi-clasp closures that are prominent and relatively large, we find that the garments possess design features that distinguish them from ordinary bras and underwear. We also find that the magnetic clasp closures would add undesirable bulk to undergarments. It is improbable that an individual would seek out these garments for wear unless they had physical disabilities or limitation that necessitated their use. Further, the importer has identified themselves as an intimate apparel company targeting women with disabilities and health conditions. The only products currently offered on their website are adaptive bras. In addition, their submission states that they design apparel excl

1. The Effortless Bra and Adaptive Underwear are Eligible for Duty-free Treatment under Subheading 9817.00.96, HTSUS. 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 (CIT 2017), aff’d, 899 F.3d 1308 (Fed. Cir. 2018), the U.S. Court of International Trade (“CIT”) explained that: The term “specially” is synonymous with “particularly,” which is defined as “to an extent greater than in other cases or towards others.” Webster’s Third New International Dictionary 1647, 2186 (unabr. 2002). 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 Third New International Dictionary 612 (unabr. 2002). 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 us