OT:RR:CTF:VS H300660 CMR
Beth C. Ring, Esq.
Sandler, Travis & Rosenberg, P.A.
551 Fifth Avenue, Suite 1100
New York, NY 10176
RE: Modification of New York Ruling Letter N282688, dated January 27, 2017; Tariff classification of a men’s woven suit from Vietnam; Articles for the Handicapped
Dear Ms. Ring:
This is in reference to New York (NY) Ruling Letter N282688, dated January 27, 2017, which was issued to you, on behalf of your client, Marcraft Clothes, Inc. We are modifying NY N282688 with regard to the determination that the suit was eligible for classification 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 6203.12.2010, of the Harmonized Tariff Schedule of the United States (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 N282688 and any treatment accorded to substantially similar transactions. One comment was in response to the proposed modification of NY N282688.
FACTS:
The garment was described in NY N282688, in part, as follows:
The submitted sample, for which a style number is not available, is comprised of three pieces: a men’s suit-type jacket, a pair of men’s trousers, and a men’s vest. You indicate that the three pieces will be put up together for retail sale. In addition, although no information has been provided regarding the sizes of the garments, you state that the three pieces are of compatible size. . . .
The jacket is constructed of six panels sewn together lengthwise and features a notched collar with lapels; a non-functional button hole on the left lapel; a left-over-right, full front opening with two non-functional button holes on the left front panel; a button sewn over the upper button hole with a concealed magnet closure behind this button; a button sewn on the right front panel opposite the lower button hole; . . . .
The trousers feature a flat waistband; a left-over-right opening with a button, a non-functional button hole, and a hook-and-loop closure on the front waistband; two concealed magnet closures within the fly placket; four elastic strips enclosed within the waistband, two of which are partially visible on the waistband’s inner surface; . . . .
The vest is constructed from three panels (two in the front, and one in the rear) sewn together lengthwise. . . The garment features a V-neckline; oversized armholes; a left-over-right, full front opening with five faux button closures and five magnet closures concealed behind the buttons; . . . .
You indicated in the ruling request that the garments (the components of the suit) “are designed for individuals with limited mobility or dexterity and contain self-closing magnets using the “Magna Ready”® technology that eliminates the need to button the jacket, vest or trousers.” You stated that “[t]he magnetic closures are clearly consistent with the garments being specially designed for use by those with chronic disabilities (e.g. arthritis, Parkinson’s disease) who struggle to dress themselves.” You also indicated that the suit would be sold with a tag similar to a tag used on the shirts which were the subject of NY N278872. The tag you submitted, which was to be used with shirts, stated, among other things: “Magna Ready Stress Free Shirting.” The tag contains a message from the creator of MagnaReady, Maura Horton, regarding the inspiration for the line which was her husband’s Parkinson’s disease.
ISSUE:
Whether the subject suit with Magna Ready® self-closing technology 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:
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 subject suit 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 suit 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 subject suit 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 that such shirts are also beneficial or useful for those who would like to avoid the hassle of buttons.
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.
We have found other garments, in addition to shirts, using magnetic closures as part of their design. These garments include men’s trousers available at Macy’s, Kohl’s, and Costco; boys’ uniform shorts, along with pants, skirts, shirts and a dress referred to as uniform garments, available from Land’s Ends; chef jackets; chef pants; a men’s collarless blazer sold by Maison Margiela; a Nic +Zoe women’s tailored, collarless blazer sold by Nordstrom’s; a Fleurette wool duster coat with spiral mink fur sold by Neiman Marcus; and various babies’ garments available at Dillard’s Lord & Taylor, Target, Buy Buy Baby, and Branches Gifts in Bloom, and Nordstrom’s, Zulily, and Bed, Bath and Beyond. In 2011, Lanvin offered a double-breasted jacket with a magnetic closure. While in some cases, such as the men’s trousers and the children’s uniform garments available from Land’s End, the term “adaptive” is used to describe the garments, the vast majority of the garments referenced here are clearly marketed to the general public and not any special class or group of individuals. Even with regard to the garments in which the term adaptive was used in the garments’ descriptions, we find descriptive marketing text which is reaching out to the general public. For example, Kohl’s descriptive text for the “Men’s MagnaClick Classic-Fit Chino Pants” states:
Ease style. Featuring hidden magnetic closures, these men’s chino pants from MagnaClick makes standout style simple for those with limited dexterity or anyone who’d rather do without the fuss of buttons.
Another example is found on the Duluth Trading Company webpage for the “Men’s Magnet Front Wrinklefighter Shirt.” The webpage text includes the following: “If you have a health condition or disability that affects your dexterity, have big fingers – or if you just want to get dressed more quickly and easily – this shirt is for you.” The garment is being marketed to people at all levels of ability, i.e., the general public.
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 subject suit 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 of a jacket or vest, or the fly of a pair of pants, does not cause this suit 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 addition, while individuals with some limited dexterity in their fingers may find such garments convenient, their dexterity issue may not rise to a level that one would consider such individuals to be handicapped. We also do not find any characteristics about the subject suit that creates a substantially greater probability of use by the handicapped versus the general public. Garments with magnetic closures are marketed to the general public, as well as to those with difficulties dressing themselves, so use by the general public is not so improbable that it would be fugitive.
As to the remaining factors we consider in determining whether an article qualifies as “specially designed or adapted,” the subject suit is imported and sold by Marcraft Clothes, Inc. an entity identified by Bloomberg as a wholesale apparel store which specializes in providing men’s and boys’ clothing. Marcraft Clothes is not generally recognized as a distributor of wearing apparel for the chronically disabled. See Headquarters Ruling Letter (HQ) H292642, dated June 29, 2018, and HQ H292346, dated June 29, 2018. We were unable to find the suit being sold by any retailers; however, we have found numerous garments, including jackets and pants with magnetic closures that are designed for use by the general public and not a special segment or group. As to the condition of the suit at the time of importation, we do not believe there is anything with regard to the garment that indicates that it is for the use or benefit of the handicapped.
The commenter believes that CBP should look to “an examination of the company’s intent, such as the activities surrounding the design, marketing, and merchandising of the product.” In this case, the commenter would have CBP differentiate identical garments used for the identical purpose, i.e., shirts to be worn for decency, comfort, or adornment, based upon the consumers to whom the importer decides to advertise and market his garments. This is simply not a proper basis for classification.
In an article, by Michael Kimmelman, published in the New York Times on January 24, 2018, entitled “How Design for One Turns Into Design for All,” the writer starts by explaining that Nike’s popular “FlyEase” line of shoes was developed in response to a letter from a college-bound student with cerebral palsy who explained he had trouble tying laces and slipping into shoes without help. The shoes are “slip-ons with a zipper that seals the back and then Velcro-ties the top in one simple motion.” These shoes, like garments with magnetic closures, are marketed to the general public. The Nike website states that these shoes are:
Designed for athletes of all abilities and ages, Nike FlyEase features a revolutionary zipper-and-strap system to help you get your shoes on and off quickly and easily.
Mr. Kimmelman’s article points out:
You don’t have to have Parkinson’s or arthritis or a prosthetic hand to prefer magnets to buttons and snaps, or to like the idea, and look, of Velcro seams and zippered sleeves. There’s a white dress shirt with magnetic closures in the show, which could easily be marketed straight to mainstream consumers, never mind the “adaptive” label. Likewise, pairs of brightly patterned compression socks by Top & Derby.
In addition, the article provides an example of articles, compression socks, which are worn by individuals who may suffer from certain infirmities, such as diabetes or high blood pressure, but are also worn by fashion models and athletes. Compression socks help increase blood circulation and minimize swelling in the feet, ankles and lower limbs. The positive attributes of compression socks are advantageous to anyone who may take long airline flights or find themselves in jobs requiring long periods of standing on their feet.
Another article which appeared on the BBC News website and is dated February 14, 2018, entitled “Hillwalkers warned about magnets in clothing, highlights that magnetic closures are becoming increasingly popular. The article, which focused on the danger of magnets affecting compasses, states:
Mountaineering Scotland said it was concerned by the growing use of magnetic closures in outdoor clothing.
Ms. Morning [mountain safety adviser for Mountaineering Scotland] said: “Modern technology is great. . . But more joined-up thinking is needed between outdoor clothing manufacturers and mountain users to avoid potentially life-threatening consequences.”
Outerwear garments with magnetic closures are being sold by companies, such as The North Face and Under Armour. These garments are clearly marketed to the general public. Due to the variety of garments in which magnetic closures are used and the marketing of such garments to the general public, we believe our view that magnetic closures have become mainstream in their use, that is, they are not limited to use in garments intended for the handicapped, is correct.
Among the factors considered in determining if an article qualifies to be classified as an article for the benefit of the handicapped is the extent of the modification or adaptation performed on an article. In an article entitled “For people with disabilities, a trend in ‘adaptive’ clothing,” submitted by a commenter opposing the modification of NY N278872, and which appeared in Moneywatch (December 12, 2018), we find the following of note:
Simple clothing alterations, such as magnetic closures that replace buttons, snaps and hooks on shirts and jackets, can benefit people with a range of disabilities, while also expanding their wardrobe with stylish options, designers say. [Emphasis added.]
This statement supports CBP’s view that the substitution of magnetic closures for buttons in garments, such as the men’s woven suit at issue herein, is not a significant adaptation or modification of the garments. Later in the same article, the author wrote: “Even able-bodied consumers see value in some of the innovations that have resulted, like shoes that zip open in the back.” A review of online shoe websites reveals the popularity of shoes that open in the back that are sold to the general public.
An internet search of “common clothing fasteners” reveals that magnets as fasteners are being used in garments when, for example, a clean look is desired. From https://www.thecreativecurator.com/clothes-fastenings/, we find in an article entitled, “15 Ways to Fasten Your DIY Clothes, Zippers, buttons, magnets and more, Creative Fashion Skills”:
A recent addition for clothes fastenings: the use of magnets!
Strong magnets are enclosed in small plastic pouches which are sewn into the garment and hidden by the facing. Great for when a clean minimal look is required with no visible closures to mar the silhouette.
The proper basis for determining whether a garment is classifiable as an article specially designed or adapted for the handicapped is discussed thoroughly in this ruling. We cannot, as the commenter suggests, base our classification of garments as specially designed or adapted for the handicapped on simply the importer’s intent as reflected in the design, marketing, and merchandising of their garment. Having considered the submitted comment, CBP continues to believe the men’s woven suit at issue in NY N282688 does not qualify for classification in subheading 9817.00.96, HTSUS, as an article specially designed or adapted for the handicapped.
HOLDING:
The subject suit is not eligible for duty-free treatment under subheading 9817.00.96, HTSUS, as an article specially designed or adapted for the handicapped. NY N282688 is hereby modified.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division