Modification of New York Ruling Letter N278872, dated September 29, 2016; Tariff classification of a men’s woven shirt from Bangladesh and Indonesia; Articles for the Handicapped

HQ H300625 February 27, 2019 OT:RR:CTF:VS H300625 CMR CATEGORY: Classification TARIFF NO.: 6205.20.2026 John B. Pellegrini, Esq. McGuireWoods LLP 1345 Avenue of the Americas Seventh Floor New York, NY 10105-0106 RE: Modification of New York Ruling Letter N278872, dated September 29, 2016; Tariff classification of a men’s woven shirt from Bangladesh and Indonesia; Articles for the Handicapped Dear Mr. Pellegrini: This is in reference to New York (NY) Ruling Letter N278872, dated September 29, 2016, which was issued to you, on behalf of your client, PVH Corporation. We are modifying NY N278872 with regard to the determination that the shirt was eligible for classification under subheading 9817.00.96, of the Harmonized Tariff Schedule of the United States (HTSUS), as an article specially designed or adapted for the use or benefit of the handicapped, as that determination was incorrect. The tariff classification of the garment in subheading 6205.20.2026, (HTSUS), was correct and remains undisturbed by this decision. Pursuant to 19 U.S.C. § 1625(c)(1), a notice was published in the Customs Bulletin, Volume 52, No. 46, on November 14, 2018, proposing to modify NY N278872, and any treatment accorded to substantially similar transactions. Three comments, which will be addressed below, were received in response to this notice. FACTS: The garment was described in NY N278872 as follows: The submitted sample, described as a “Magna Click Shirt,” is a men’s shirt constructed from 55% cotton, 45% polyester, woven fabric. The garment features a self-fabric point collar; a full front opening secured by a left-over-right, seven button faux closure and a concealed seven magnet closure; a patch pocket on the left chest; long vented sleeves with a single button closure on the vent plackets; a faux button closure with a concealed magnetic closure on each cuff; a back yoke; a hanger loop and a box pleat on the center back panel; and a curved, hemmed bottom. You state that the shirts will be available in five basic and three fashion colors. You indicated in the ruling request that the shirts with the magnetic closures are more expensive to produce and are designed for use by individuals with limited mobility or dexterity, such as individuals suffering from Parkinson’s disease. You stated that the shirts would be marketed for use by handicapped individuals and would be available in limited styles and colors. Further, you stated that these shirts would be “40 percent more expensive than ‘normal’ shirts” reducing the probability of use by individuals not suffering from mobility or dexterity issues. Therefore, you claimed that these shirts satisfy the requirements for classification in subheading 9817.00.96, HTSUS, which 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. NY N278872 indicates that these items are described on your client’s website as “designed for individuals with limited mobility or dexterity.” The ruling further states: Magna Ready® shirts contain self-closing technology that eliminates the need to button a shirt. Simply pressing the two sides of the shirt front together snaps the magnets into place. The magnets are hidden between layers of fabric, and buttons or traditional closures are placed decoratively on the garments. The magnetic closures are clearly consistent with the garments being specially designed for use by those with chronic disabilities (for example, arthritis, Parkinson’s disease) who struggle to dress themselves. Based on the above information, NY N278872 held that the shirt at issue was eligible for duty-free treatment under subheading 9817.00.96, HTSUS. As noted above, this determination was in error. ISSUE: Whether the “Magna Click Shirt” is eligible for duty-free treatment under subheading 9817.00.96, HTSUS, as articles specially designed or adapted for the handicapped. LAW AND ANALYSIS: Congress passed the Educational, Scientific, and Cultural Materials Importation Act of 1982, Pub. L. No. 97-446, 96 Stat. 2329, 2346 (1983), and the Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, 102 Stat. 1107 (1988), to implement the Nairobi Protocol to the Florence Agreement on the Importation of Educational, Scientific and Cultural Materials (“Nairobi Protocol”), an international agreement intended to provide “duty free treatment to articles for the use or benefit of the physically or mentally handicapped persons, in addition to articles for the blind.” See also 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”). Presidential Proclamation 5978 and Section 1121 of the Omnibus Trade and Competitiveness Act of 1988, provided for the implementation of the Nairobi Protocol into subheadings 9817.00.92, 9817.00.94, and 9817.00.96, HTSUS. Therefore, this legislation eliminated duties for products covered by subheading 9817.00.96, HTSUS, which 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. See subheading 9817.00.96, HTSUS; see also Sigvaris, Inc. v. United States, 227 F. Supp. 3d 1327, 1335 (Ct. Int’l Trade, 2017). 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, classification 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. 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. See Sigvaris, 227 F. Supp. 3d at 1335. 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.” Id. at 1335 (citing Webster’s at 2280). 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 classification under subheading 9817.00.96, HTSUS, 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.” Specifically, the court in Danze stated: “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.” Sigvaris, 227 F. Supp. 3d at 1336. Any adaptation or modification to an article to render it for use or benefit by handicapped persons must be significant. See Danze at 14. 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 Implementation of the Nairobi Protocol, 26 Cust. Bull. & Dec. 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 Magna Click shirt 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 shirt is claimed to be “specially designed” is the ability to dress oneself. 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 that the Magna Click shirt is not distinguishable from articles useful to the general public. Magnetic closures for garments have become mainstream in their use. An internet search revealed numerous websites advertising men’s shirts with magnetic closures. While it is true that some websites advertising such shirts make reference to a garment as “adaptive clothing” or as being for those with limited dexterity, those same websites include statements that such shirts are also beneficial or useful for those who would like to avoid the hassle of buttons, which is evidence that the mainstream use of magnetic closures is especially true with regard to men’s shirts. These shirts, with magnetic front closures, are being sold by various stores, including J.C. Penney’s, The Men’s Wearhouse, Costco, Kohl’s, Macy’s, Duluth Trading Company, as well as by companies which generally market products to individuals with disabilities or considered “senior”, such as Silvert’s, where a men’s shirt with magnetic buttons appears when one clicks the ‘Men’s Regular” or “Men’s Adaptive” tabs. In the case of Silvert’s, the descriptive text indicates that the target market is individuals with lowered hand dexterity due to illness. The descriptive text states, among other things: This magnet fastening shirt features terrific dressing for those with lowered hand dexterity when paralysis is an issue caused by arthritis, Rheumatoid arthritis, Parkinson’s, Neuropathy, Multiple Sclerosis, ALS and Stroke. . . . The best in Parkinson’s clothing magnetic buttons for clothing make the difficult task of dressing a breeze! The faux-button placket and cuffs conceal magnetic closures that make dressing incredibly easy. . . . If you are looking for a great gift for someone who is handicapped, disabled or an elderly senior look no further. Furthermore, in an article appearing on www.businesswire.com, dated September 27, 2016, and entitled, “Van Heusen Introduces Adaptive Clothing Solutions in Major Retailers Utilizing Hidden Magnet Closures,” David Sirkin, President, The Dress Furnishings Group at PVH Corporation, was quoted as stating: “We are extremely proud to launch the Van Heusen dress shirt featuring MagnaClick™ technology. . . .We believe this is a game-changing product that offers a stylish, high quality solution for consumers with limited dexterity or those seeking an alternative to buttons.” You stated that these shirts are more expensive to produce, but did not provide any evidence to support the assertion or the range of the additional expense claimed. Further, you stated that these shirts would be 40 percent more expensive than “normal” shirts, making it less likely than individuals without mobility or dexterity limitations would purchase these shirts. However, we found the MagnaClick men’s dress shirt for sale online at various prices depending on the retailer. The prices for which the shirts were offered for sale ranged from $22.99 to $74.50. While we noticed some variation in prices between the magnetic closure shirts and “normal” shirts, the greatest variation we found was a 25 percent difference. This is far less than the 40 percent greater expense claimed in the ruling request. Further, we note that Macy’s sold the MagnaClick shirts and comparable “normal” shirts for the exact same price. As the court in Sigvaris, 899 F.3d 1308 (Fed. Cir. 2018), stated, we must consider for whose benefit the article is specially designed and whether the article is intended for the use or benefit of a specific class of persons to an extent greater than for the use or benefit of others. Based upon the information we have found, we find that the “Magna Click Shirt” at issue is not 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. The use of magnets for the front closure and on the sleeve cuffs does not cause this article to be easily distinguishable from articles useful to non-handicapped persons. As the use of magnets for closures in garments has become mainstream, we do not view their use to be a significant adaptation to a garment such that the use of a garment with such closures would be more prevalent among the handicapped or disabled, as opposed to the general public. In fact, we have found identical or virtually identical shirts being marketed to the general public for their use and convenience. In addition, while individuals with some limited dexterity in their fingers may find such shirts convenient, their dexterity issue may not rise to a level that one would consider such individuals to be handicapped. For instance, as the Duluth Trading Company webpage pointed out with regard to the magnetic closure shirt it was advertising, “[i]f you have . . . big fingers, .. . this shirt is for you.” We also do not find