Request for Reconsideration of Headquarters Ruling Letter (HQ) H292642, dated June 29, 2018; Articles for the Handicapped

H300486 October 26, 2018 OT:RR:CTF:VS H300486 JMV CATEGORY: Classification John B. Pellegrini, Esq. McGuire Woods 1251 Avenue of the Americas 20th Floor New York, NY 100200 RE: Request for Reconsideration of Headquarters Ruling Letter (HQ) H292642, dated June 29, 2018; Articles for the Handicapped Dear Mr. Pellegrini: This is in response to your request, on behalf of your client, PVH Corporation, for reconsideration of Headquarters Ruling Letter (HQ) H292346, dated June 29, 2018, regarding the classification of certain garments. HQ H292346 held that the garments did not qualify for classification in subheading 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS), as articles specially designed or adapted for the use or benefit of the physically or mentally handicapped as the garments were found not to meet the requirements for classification within the provision. The garments at issue in HQ H292346 were: (1) style number 7688800410, an 84% cotton, 16% nylon knit sleeveless dress with hidden magnets on each shoulder between the neck and arm holes to allow for a larger neck opening; (2) style number 768805, a 100% cotton women’s “tina tee” with hidden magnets on each shoulder between the neck and arm holes to allow for a larger neck opening; (3) style number 7684933, 60% cotton, 40% polyester knit sweatshirt with hidden magnets on each shoulder between the neck and arm holes to allow for a larger opening; (4) style number 7688796166, a 60% cotton, 40% polyester knit bomber jacket with magnets vertically down the front in place of a zipper to allow for easy closure; (5) style number 717906637, a 97% polyester, 3% elastine girl’s knit dress with magnets hidden in the shoulder between the neck hole and the arm hole to allow for a larger neck opening; (6) style number 7688792319, a 100% polyester women’s bomber jacket with a special zipper with magnets on either side of the bottom which snap together and allow the zipper to be pulled with a single hand; and (7) style number 7688733281, 97% cotton, 3% spandex men’s woven chino khaki pants with Velcro and a series of magnets in place of a button and zipper for the fly closure. The waistband in these pants also include an elastic band, which tighten the fit, and hidden magnets that hold together the lower outseam of the pants. The magnets start at the hem and extend up approximately 12 inches so that the wearer can slide the pants over a prosthetic or leg braces. You have requested we reconsider our decision in HQ H292346 and the analysis therein which takes into consideration various factors, including (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 Implementation of the Nairobi Protocol, 26 Cust. Bull. & Dec. at 243-244. 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. In your request for reconsideration, you discuss these various factors. However, you believe HQ H292346 erroneously interpreted the first factor, i.e., the physical properties of the garment, to mean that the garments must look like they are designed for the handicapped. This was certainly not the intent of the decision, nor is this a proper interpretation of the analysis. Rather, it is our finding that the use of magnetic closures and button and loop hem adjustments are in garments designed for and sold to the general public. As such, the use of these devices in a garment design is not, in our view, a significant adaptation that, by itself, easily distinguishes garments as designed for the handicapped as opposed to garments which the general public may find of use and so use. You state that the ruling stated that these garments, referred to as “adaptive clothing,” can be used by people with various conditions, many of which would not be considered a physical handicap for purposes of classification in subheading 9817.00.96, HTSUS, but that the ruling failed to identify these conditions. In your submission, you state that the garments at issue are designed for people with one or more of a number of conditions which you identify. However, as the court stated in Sigvaris, Inc. v. United States, 899 F.3d 1308 (Fed. Cir. 2018): “we must ask first, ‘for whose, if anyone’s, use and benefit is the article specially designed,’ and then, ‘are those persons physically handicapped?’” As with all diseases and conditions, there are degrees of disability. In this case, we need not delve into the degree of disability which necessitates use of magnetic closures as it is apparent that the general public purchases and uses garments with magnetic closures, as well as garments with adjustable hems for length. You have highlighted the placement of the magnets in the garments, i.e., along the outseams of the pants. However, in these particular garments, we do not find the placement of the magnets persuasive as to indicate that these are significant adaptations. In the case of the pants, you state they are to allow for the accommodation of braces or prosthetics. However, we find that openings along the outseams of pants are design features which may be used in certain pants either for fashion reasons or functional reasons, such as allowing the wearer to put the garment on or take the garment off over shoes. In the case of the shirts with magnetic shoulder closures, you state that the larger opening allows the differently abled to put the article over their head. However, this is a design commonly used for clothing intended for those recovering from surgery. You indicate there is a functional reason for the opening, but the use of magnets for the opening is not, in our view, a significant adaptation to the garment. You focus on the marketing of these garments by your client to the differently-abled community, and the intent of your client that these garments are for this community. However, we must look not just at your client’s intent and marketing, but at whether these garments are specially designed or adapted for the use or benefit of a specific class of persons, i.e., the handicapped, to an extent greater than for the use or benefit of the general public. In doing so, it is relevant that we have found numerous garments, marketed to the general public, with magnetic closures and adjustable hems. We cannot allow an individual importer’s marketing strategy alone to determine the classification of their merchandise. To do so, would result in virtually identical or substantially similar merchandise being classified differently solely based upon the marketing strategy of the importer. This is not how merchandise is classified, nor is it how Customs and Border Protection determines whether merchandise is eligible for classification in subheading 9817.00.96, HTSUS. You raise the cost to your client of the adaptations to the original designs for these garments. Certainly, this is a consideration in determining whether an adaptation is significant. However, it must be weighed in light of the factors. In this case, the increased cost for the production of the “adaptive” version garments simply does not outweigh the other factors discussed in HQ H292346. Finally, you point to the washing instructions for the garments. However, we find this unpersuasive. Many garments have special washing instructions, such as, turn the garment inside out, wash only with like colors, or do not dry clean. Inclusion of instructions to not iron magnets does not factor into a determination of whether these garments are specially designed or adapted for the handicapped. Classification is on a case-by-case basis. Based upon an examination of the garments at issue in HQ H292346, the factors discussed in the ruling, and the additional information cited in this letter with regard to garments marketed to the general public, we affirm our decision in HQ H292346. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division