OT:RR:CTF:VS H304676 tmf
Ms. Amy Smith
Kohl's
N56 W17000 Ridgewood Drive
Menomonee Falls, Wisconsin 53051
RE: Articles for the handicapped; Woman's Knit Tank Top; Woman's Knit Bodysuit; Girls' Knit Pullover; Men's Knit Upper Body Garment
Dear Ms. Smith:
This is in response to your request, dated June 21, 2019, for a binding ruling on the eligibility of four 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. The garments consist of a woman's 60% cotton, 40% spandex knit tank top; a woman's 96% cotton, 4% spandex knit bodysuit; a girls' 65% polyester, 35% rayon knit pullover; and a men's 50% polyester 50% cotton knit tank top. Your ruling request was forwarded to our office from the National Commodity Specialist Division for our response.
FACTS:
The requester provided a sample of Style JG93K53T, which has the brand name, "So Favorite Tank" screen printed on the inside of the shirt. This garment is a woman's tank top constructed from 60% cotton, 40% spandex knit fabric. This sleeveless garment features a U-shaped front neckline, 1 inch wide shoulder straps, a U-shaped rear neckline below the nape of the neck, an opening at the front waist from side seam to side seam, and a straight hemmed bottom. The garment extends from the shoulders to below the waist. The requestor states this opening provides abdominal access for medical ports and feeding tubes. However, when worn the opening is not necessarily visible. The National Commodity Specialist provided a photo of the garment on a mannequin and the opening is not apparent. The garment merely appears to have a layered look.
The woman's bodysuit, Style JG93K53B, has the brand name, "So" screen printed on the inside of it. This garment is constructed from 96% cotton, 4% spandex knit fabric. The one-piece tightly fitted garment is legless and features short sleeves, a two snap closure at the right shoulder, a round front neckline, an eight snap closure at the front waist from side seam to side seam, a five snap closure on both sides extending across the midsection of the waist running along the sides of the hips without any opening at the crotch. The requestor states the abdominal snap closures provide access for medical ports and feeding tubes.
Style DG93K51 has the brand name, "So" screen printed on the inside of the shirt. This long sleeve pullover is constructed from 65% polyester, 35% rayon knit fabric. The outer surface of the knit fabric which comprises this garment measures more than 9 stitches per 2 centimeters in the direction the stitches were formed. The pullover features a capped crew neckline, trim which forms a flare around the shoulder, long hemmed raglan sleeves, and a hemmed straight bottom. The garment extends to below the waist. The pullover also features an inner layer of fabric which "includes two 3 inch slits for abdominal access for medical ports and feeding tubes."
The men's shirt, Style YU93K10 has the brand name, "Urban Pipeline" Authentic American Tradition Adaptive" screen printed on the inside of the shirt. This men's garment is similar to a tank top and is constructed from 50% cotton, 50% polyester knit fabric that measures 30 stitches per two centimeters counted in the horizontal direction. The garment is sleeveless and features oversized armholes; shoulder straps that measure 2 inches in width; a round front neckline; a rear neckline that falls below the nape of the neck; self-fabric capping at the neckline and armholes; two slits in the front panel that measure 4 inches in length, whose stated purpose is to allow access to the wearer's abdominal area for the connection of medical ports and feeding tubes; and a straight, hemmed bottom.
ISSUE:
Whether the garments at issue, 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 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, 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.
* * *
. . . we must ask first, "for whose, if anyone's, use and benefit is the article specially designed," and then, "are those persons physically handicapped?"
Id.
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 at 1336. See also, Sigvaris, Inc. v. United States, 899 F.3d 1308 (Fed. Cir. 2018), wherein the court 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." See Sigvaris, 899 F.3d 1308 (Fed. Cir. 2018). The Court of Appeals for the Federal Circuit refined this requirement which it found to be incomplete. The court 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.
Sigvaris, 899 F.3d 1308.
Finally, the legislative history further aids our analysis of these terms as used in subheading 9817.00.96, HTSUS. The 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 v. United States, the court looked to the legislative history and noted that its interpretation of the terms "specially" and "designed" in Sigvaris comported with the legislative intent behind subheading 9817.00.96, HTSUS, that any modification or adaptation be "significant."
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. See also Danze, Inc. v. United States, Slip Op. 18-69 (Ct. Int'l Trade 2018); Sigvaris, Inc. v. United States, 227 F.Supp.3d 1327 (Ct. Int'l Trade, 2017), aff'd, 899 F.3d 1308 (Fed. Cir. 2018). The court in Sigvaris, 899 F.3d. 1308 (Fed. Cir. 2018), 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." The court adopted these factors into its analysis.
Looking to the court's analysis in Sigvaris, 899 F.3d 1308 (Fed. Cir. 2018), we must first examine for whose use and benefit these four styles of garments are "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.
With all of the four styles at issue, JG93K53B, JG93K53T, YU93K10 and DG93K51, the life activity for which each style is claimed to be "specially designed" is the ability to dress oneself; even if there is a caregiver to provide assistance in dressing the wearer. With regard to the first two factors to consider in determining whether an article is "specially designed," i.e., the physical properties of an article and any characteristics of an article that easily distinguishes it from articles useful to the general public, DG93K51 meets these two factors. This girls' long sleeve pullover extends below the waist and features an inner layer of fabric with two 3 inch slits for abdominal access for medical ports and feeding tubes. It is distinguishable from mainstream pullovers because it has this adaptive feature which makes it functional for wear with medical devices such as ports and feeding tubes. This adaptive feature is not found in garments sold to the public. Further, these two openings are significant adaptations since the middle front portion of the garment allows access to ports and feeding tubes. A feature allowing such access is generally not seen on mainstream pullover garments because they would serve no purpose and would distract from the garment. See Danze, Inc. v. United States, Slip Op. 18-69 (Ct. Int'l Trade 2018), wherein the court stated that "[a]ny adaptation or modification to an article to render it for use or benefit by handicapped persons must be significant." With the men's shirt (YU93K10), it also has two openings similar to the girl's knit pullover (DG93K51) which makes the garment adaptive for wear with medical ports and feeding tubes and facilitates the ability to gain access to the wearer's organs in the midsection. These significant adaptations make these garments distinguishable from mainstream pullovers because they facilitate adaptive wear with medical devices such as ports and feeding tubes for the benefit of the handicapped wearer.
With the woman's bodysuit (JG93K53B), it features eight snap closures across the front waist from side seam to side seam, and five snap closures on the left and right sides, which you state provide access for medical ports and feeding tubes. We believe these snap adaptations are significant and purposeful as they are not features generally found on similar, mainstream bodysuits. We agree that these multiple snaps serve to keep the tubes and ports neat and in order for the wearer. With regard to the sleeveless, woman's U-neck, t-shirt (JG93K53T), we reviewed the open midsection feature and find that there is nothing about this feature that is significant. In fact, when worn, the garment is quite stylish and the opening may be viewed by the general public as a fashion element.
As to the remaining factors we consider in determining whether any of the articles qualify as "specially designed or adapted," Kohl's is a major retailer that is not historically recognized as a retailer 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, we found on the internet that Kohl's corporate brands' strategies includes producing inclusive clothing lines that addresses "the challenges people with physical and mental disabilities face by offering adaptive clothing options". On the company website, it highlights that Kohl's markets garments similar to the styles at issue, such as garments with significant adaptions strategically placed to allow access to abdominal openings for medical ports and gastroenterology feeding tubes, or adaptations that facilitate easy dressing for both the user and caregiver.
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. We believe that at the time of importation, the three styles of merchandise will be marketed and sold as adaptive wear for the handicapped based on the review of the internet brochure. Based upon the significant adaptions contained in styles JG93K53B, DG93K51 and YU93K10, we believe it is unlikely that an individual with a transient or acute disability would invest in these garments. Therefore, we find these three styles are eligible for subheading 9817.00.96, HTSUS; however, style JG93K53T is not.
HOLDING:
Styles JG93K53B, DG93K51and YU93K10 are eligible for subheading 9817.00.96, HTSUS, as "articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons . . . other;" style JG93K53T is not. 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 Branch
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U.S. Department of Homeland Security
Washington, DC 20229
U.S. Customs and Border Protection