CLA-2-62 OT:RR:NC:N3 348
Cathy Yu
Yu, Cathy C.
580 N Park Ave, Unit B Pomona, CA 91768
RE: The tariff classification of bib apron from China
Dear Ms. Yu:
In your letter dated July 31, 2024, on behalf of your client, Weveel LLC, you requested a tariff classification ruling. The sample will be returned as requested.
The submitted sample, item #70783, is a child's bib apron. The apron is composed of 100% polyester woven fabric. The apron covers the torso and reaches above the knee. The garment features a textile strap at the neck and at the waist with hook and loop closure. It also features a pocket at the chest and six front pockets along the waist.
The applicable subheading for item #70783 will be 6211.43.1092, Harmonized Tariff Schedule of the United States (HTSUS), which provides for track suits, ski-suits and swimwear; other garments: other garments, women's or girls': of man-made fibers, other, other. The duty rate will be 16 percent ad valorem.
In your submission you requested consideration of a secondary classification under 9817.00.96, HTSUS, which applies to articles and parts of articles specifically designed or adapted for the use or benefit of the permanently or chronically physically or mentally handicapped.
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. 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. 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.
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. 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) 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.
Based upon the information supplied, it is the opinion of this office that item #70783 is not for the permanently or chronically impaired. The garments' adaptions are not significant enough to qualify for classification under 9817.00.96, HTSUS. In addition, the garments are not easily distinguishable from garments used by the general public and do not appear to be designed, marketed, and sold exclusively for the handicapped community. Therefore, we disagree that a secondary classification in 9817.00.96, HTSUS, applies.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 6211.43.1092, HTSUS, unless specifically excluded, are subject to an additional 7.5 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.15, in addition to subheading 6211.43.1092, HTSUS, listed above.
The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china respectively.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/.
The holding set forth above applies only to the specific factual situation and merchandise description as identified in the ruling request. This position is clearly set forth in Title 19, Code of Federal Regulations (CFR), Section 177.9(b)(1). This section states that a ruling letter is issued on the assumption that all of the information furnished in the ruling letter, whether directly, by reference, or by implication, is accurate and complete in every material respect. In the event that the facts are modified in any way, or if the goods do not conform to these facts at time of importation, you should bring this to the attention of U.S. Customs and Border Protection (CBP) and submit a request for a new ruling in accordance with 19 CFR 177.2. Additionally, we note that the material facts described in the foregoing ruling may be subject to periodic verification by CBP.
This ruling is being issued under the provisions of Part 177 of the Customs and Border Protection Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, please contact National Import Specialist Rosemarie Hayward at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division