Articles for the Handicapped; Men’s woven shirt; Adaptive Clothing

HQ H303988 July 26, 2019 OT:RR:CTF:VS H303988 EGJ CATEGORY: Classification TARIFF NO.: 9817.00.96 Ms. Maristella Iacobello PVH Corp. 200 Madison Avenue New York, NY 10016 RE: Articles for the Handicapped; Men’s woven shirt; Adaptive Clothing Dear Ms. Iacobello: This is in response to your request, dated April 18, 2019, for a ruling on the eligibility of a men’s woven shirt 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: The garment at issue is referred to as “Adaptive Style# ‘Rear Full Length Placket Seated Fit Woven Shirt.’” The men’s garment is constructed from 100% cotton, yarn dyed woven fabric. The garment features a left-over right, partial front opening at the collar with three button closures. Three additional buttons extend down the lower front of the shirt. These three buttons are not closures; they are attached to give the appearance that the shirt has a full front opening. The shirt’s additional features include a button-down collar, long vented sleeves, fabric cuffs with a hook-and-loop closure and a faux button closure on each, a left breast pocket with a small embroidered logo, a full opening in the center back with six hook-and-loop closures, a back yoke, and a straight hemmed bottom. The shirt features a front body length one inch shorter than the back body length. You state that the subject shirt is designed for use by men confined to a wheelchair on a permanent basis. ISSUE: Whether the shirt at issue, the “Rear Full Length Placket Seated Fit Woven Shirt,” is eligible for duty-free treatment under subheading 9817.00.96, HTSUS, as an article 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 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. U.S. Note 4(a), Subchapter XVII, 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. 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 Sigvaris Inc. v. United States, 227 F.Supp. 3d 1327 (Ct. Int’l Trade 2017)(Sigvaris I), the U.S. Court of International Trade (CIT) found that certain compression hosiery was not eligible for preferential tariff treatment under subheading 9817.00.96, HTSUS. In Sigvaris, Inc. v. United States, 899 F.3d 1308 (Fed. Cir. 2018)(Sigvaris II), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) found that the CIT had reached the correct conclusion, and yet disagreed with the lower court’s analysis. The Federal Circuit found that the CIT had looked to the condition or disorder and whether it is a handicap. The Federal Circuit 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 … [W]e must ask first, “for whose, if anyone’s, use and benefit is the article specially designed,” and then, “are those persons physically handicapped?” Sigvaris II, 899 F.3d at 1314. 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 CIT has 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, 319 F. Supp. 3d 1312 (Ct. Int’l Trade 2018)(Danze). Moreover, in analyzing this same provision in Sigvaris I, 227 F. 3d at 1336, the CIT 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” Id. citing to Webster's Third New International Dictionary 1647, 2186 (unabr. 2002)(Webster’s)… 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.” Id. citing to Websters at 612. In Sigvaris II, the Federal Circuit agreed with the CIT’s determination 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.” 899 F.3d at 1314 citing to Sigvaris I, 227 F. 3d at 1336. However, the Federal Circuit found that, as stated by the CIT, this requirement was incomplete. Sigavris II, 899 F.3d at 1315. The Federal Circuit concluded that, “to be ‘specially designed,’ the subject 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.” Id. at 1315. Finally, the legislative history further aids our analysis of these terms as used in subheading 9817.00.96, HTSUS. The U.S. Senate stated in its Report that one of the goals of this law was to benefit the handicapped and show U.S. support for the rights of the handicapped. The Senate stated, in relevant part: By providing for duty-free treatment of articles specially adapted for the blind or other physically or mentally handicapped persons, the committee does not intend that an insignificant adaptation would result in duty-free treatment for an entire relatively expensive article. Otherwise, the special tariff category will create incentives for commercially motivated tariff-avoidance schemes and pre-import and post-entry manipulation. Rather, the committee intends that, in order for an entire modified article to be accorded duty-free treatment, the modification or adaptation must be significant, so as clearly to render the article for use by handicapped persons. S. Rep. No. 97 564, 97th Cong. 2nd Sess. (1982). The Senate was concerned that persons would misuse this tariff provision to avoid paying duties on expensive products. Similarly, in Danze, the CIT looked to the legislative history and noted that its interpretation of the terms “specially” and “designed” in Sigvaris I comported with the legislative intent behind subheading 9817.00.96, HTSUS, which is that any modification or adaptation be “significant.” Danze, 319 F.Supp 3d at 1321 – 1322 citing to Sigvaris I, 227 F. 3d at 1336. CBP has recognized several factors to be utilized and weighed against each other on a case-by-case basis when determining whether a particular product is “specially designed or adapted” for the benefit or use of handicapped persons. See U.S. Customs Serv. Implementation of the Duty-Free Provisions of the Nairobi Protocol, Annex E, to the Florence Agreement, T.D. 92-77, 26 Cust. B. & Dec. 240, 241 (1992) (“Implementation of the Nairobi Protocol”) at 243-244. These factors include: (1) the physical properties of the article itself (i.e., whether the article is easily distinguishable by properties of the design, form, and the corresponding use specific to this unique design, from articles useful to non-handicapped persons); (2) whether any characteristics are present 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) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (4) whether the articles are sold in specialty stores which serve handicapped individuals; and, (5) whether the condition of the articles at the time of importation indicates that these articles are for the handicapped. In Sigavaris II, the Federal Circuit found that “[t]hese factors aid in assessing whether the subject merchandise is intended for the use or benefit of a specific class of persons to a greater extent than for the use or benefit of others.” 899 F.3d at 1315. The Federal Circuit incorporated these factors into its analysis. Id. Applying the Federal Circuit’s analysis in Sigvaris II, 899 F.3d 1308, we must first examine for whose use and benefit the “Rear Full Length Placket Seated Fit Woven Shirt” is “specially designed,” and whether such persons are physically handicapped. 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. In this case, the life activity for which the “Rear Full Length Placket Seated Fit Woven Shirt” is claimed to be “specially designed” is dressing oneself. With regard to the first two factors to consider in determining whether an article is “specially designed,” i.e., the physical properties of the article and any characteristics of the article that easily distinguish it from articles useful to the general public, we find that the “Rear Full Length Placket Seated Fit Woven Shirt” does possess a design feature that distinguishes it from typical men’s knit shirts used by the general public, i.e., the full back opening secured by six hook and loop closures. However, we must determine whether this design adaptation is significant. In this case, we believe it is. The garment is a collared, woven men’s shirt. Such garments do not normally have any opening in the back. However, this garment is designed with a full placket opening at the center back of the garment allowing a caregiver to open the garment, assist an individual with placing their arms through the sleeves, and then securing the full back opening with the hook and loop closures. Garments with full back openings secured by hook and loop closures, as in this garment, are not typically marketed to or used by the general public. Nor is a back opening secured by hook and loop closures easy to secure. It requires the assistance of another individual, such as a caregiver, to close the back of the garment for the wearer. As to the remaining factors we consider in determining whether an article qualifies as “specially designed or adapted,” the “Rear Full Length Placket Seated Woven Shirt” is imported and sold by PVH, an entity that has established itself as one of the largest apparel companies in the world. PVH is not generally recognized as a distributor of wearing apparel for the chronically disabled. See Headquarters Ruling Letter (HQ) H292642, dated June 29, 2018; HQ H292346, dated June 29, 2018; and HQ H300625, dated February 27, 2019. However, this is but one factor to consider. As to whether the garment is sold in specialty stores which serve handicapped individuals, while this particular garment is not, as it is sold by PVH, similar garments with full back openings secured by hook and loop closures are available for sale through such specialty stores. Finally, subheading 9817.00.96, HTSUS, does not cover articles for acute or transient disability. See U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS. Based upon the nature of the garment and the expense in purchasing it, we believe it is unlikely that an individual with a transient or acute disability would invest in a garment such as the one at issue. HOLDING: The garment at issue, the “Rear Full Length Placket Seated Fit Woven Shirt,”, is classifiable under subheading 9817.00.96, HTSUS, as an “article[ ] specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons . . . other.” The duty rate for articles classified under subheading 9817.00.96, HTSUS, is Free. A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy of this ruling, it should be brought to the attention of the CBP officer handling the transaction. Sincerely, Monika R. Brenner, Chief Valuation and Special Programs Bran