Women’s adaptive style Jeggings; Articles for the handicapped

HQ H304127 June 23, 2019 OT:RR:CTF:VS H304127 tmf CATEGORY: Classification TARIFF NO.: 9817.00.96 Ms. Maristella Iacobello PVH Corp. 200 Madison Avenue New York, NY 10016 RE: Women’s adaptive style Jeggings; Articles for the handicapped Dear Ms. Iacobello: This is in response to your request, dated April 18, 2019, for a binding ruling on the eligibility of jeggings 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 from the National Commodity Specialist Division for our response. FACTS: The garment at issue is referred to as the “Tommy Adaptive Seated fit Classic Jegging” which is sold in the adaptive wear section on the Tommy Hilfiger website. The garment is a women’s legging composed of 55% cotton/31% tencel/1% spandex knit fabric that you state originates from either Bangladesh, China or Vietnam. You state it is designed for seated wear (for wheelchair bound individuals). The pull-on pants extend from the waist to the ankles and feature a flat waistband. The jeggings feature a faux front fly; a lower front rise (measuring approximately 7 inches from the inside leg seam) to reduce unyielding fabric bunching; a higher back rise (measuring approximately 17 inches from the inside seam) without pockets for a more comfortable and smoother fit; sewn elastic loops in the inner waist on both sides to allow the wearer to pull up the pants (for ease of use while in the restroom); small elastic loops with two buttons sewn at the inside of each leg to allow for the adjustment of the length of the hemmed trouser leg; and a small embroidered Tommy Hilfiger ™ logo on the upper right left panel. You state that the subject garment is designed for use by women confined to a wheelchair on a permanent basis. ISSUE: Whether the garment at issue, the “Tommy Adaptive Seated fit Classic Jegging,” 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. 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 the “Tommy Adaptive Seated fit Classic Jegging” 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 “Tommy Adaptive Seated fit Classic Jegging” seeks to be “specially designed” is the ability to dress oneself. CBP finds that the girls’ adaptive skinny jeans and polyester knit dress at issue are not specially designed or adapted articles. CBP examines merchandise in its condition as imported. 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 the “Tommy Adaptive Seated fit Classic Jeggings” look like regular leggings. The subject jeggings do not possess design features that distinguish it from typical leggings useful to the general public. The subject jeggings are constructed with a lower rise in the front to reduce fabric bunching and a higher rise in the back; however, depending on the size of the wearer’s buttocks, the general public may seek to wear this type of apparel to provide better coverage of the rear. Further, the elastic loop feature on both sides of the pants is found in many pants to enable hanging. Although the loops may be composed of different material that is not necessarily elastic, this feature is not a significant adaptation. In addition, the use of stretching elastic does not necessarily help the wearer to pull up the pants. The adjustability of the legs’ length with the button and loop are also common in pants to the general public and are not indicative that the garment has been specially designed and adapted for the use of a handicapped individual. See HQ H292642, dated June 29. As to the remaining factors we consider in determining whether an article qualifies as “specially designed or adapted,” the “Tommy Adaptive Seated fit Classic Jegging” 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. Although this alone would not be detrimental to a claim for subheading 9817.00.96, HTSUS, treatment, coupled with the facts that the jeggings are not specifically designed or adapted, we find the jeggings do not qualify for duty-free treatment. HOLDING: The garment at issue, the “Tommy Adaptive Seated fit Classic Jegging,” is not eligible for subheading 9817.00.96, HTSUS, treatment as an “article[ ] specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons . . . other.” 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