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

HQ H300487 October 29, 2018 OT:RR:CTF:VS H300487 CMR CATEGORY: Classification John B. Pellegrini, Esq. McGuire Woods 1251 Avenue of the Americas 20th Floor New York, NY 10020 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) H292642, dated June 29, 2018, regarding the classification of certain garments. HQ H292642 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 H292642 were: (1) style #7177906637, a 97% polyester/3% elastane knit girl’s dress with an approximately 11-inch opening from the neckline down the back which features 4 sets of magnets for easy closure; (2) style #7177097, a 77% cotton/21% polyester/2% lycra girl’s skinny jeans, featuring an elasticized waistband, faux front pockets, a faux fly front, two functional rear pockets, long hemmed legs, and approximately 11-inch openings on the outside seam of each leg from the hem upward which are secured by 8 sets of magnets each; and, (3) style #7177098, a 80% cotton/19% polyester/1% spandex girl’s skinny jeans, referred to as “Jegging Fit Jean,” and featuring an elasticized waistband faux front pockets, a faux fly front, two functional rear pockets, and long hemmed legs which each feature an internal elastic loop at the internal hem seam with two sets of internal buttons located at 2-1/2 and 4-1/2 inches from the hemmed bottom to allow for adjusting the length of the pants legs. You have requested we reconsider our decision in HQ H292642 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 H292642 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. However, 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., in the back of the dress and along the outseams of the jeans. 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 jeans, 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 this case, 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 H292642. 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 H292642, 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 H292642. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division