OT:RR:CTF:FTM H333430 BJK

Ms. Sally Gifford
Senior Trade Compliance Analyst
GEODIS America
5101 South Broad Street
Philadelphia, Pennsylvania 19112

RE: Tariff Classification and Applicability of Subheading 9817.00.96, HTSUS; Women's Pajamas Set with Features for Adaptive Use

Dear Ms. Gifford:

This is in response to your request, on behalf of QVC, Inc. ("QVC"), dated July 14, 2023, for a binding ruling regarding the tariff classification and duty-free eligibility under the Harmonized Tariff Schedule of the United States ("HTSUS") of a women's pajamas set, which includes a garment top and garment bottom, composed of 92% polyester and 8% spandex knit jersey, and featuring elements for adaptative use.

Your request and sample provided was forwarded by the National Commodity Specialist Division ("NCSD") to this office for a response. Our ruling is set forth below.

FACTS:

The merchandise at issue is Style IML SB Sleep Set, which is a women's pajama set featuring a garment top and garment bottom. The composition of both the garment top and garment bottom are 92% polyester and 8% spandex knit jersey. The garment top has a notch-collar, patch chest pocket, long sleeves, and a full front opening closed by magnets. Buttons sewn on the outside of the right front placket simulate a button-closure. The garment bottoms have a covered elastic waistband and side pockets. Three hand straps are sewn into the waistband of the garment bottoms, including one on each side and one in the center back. The requestor explains that the magnets on the garment top and hand straps on the garment bottom are design features intended for adaptive use and to make the set easier for someone with a disability to dress alone or be assisted in dressing. A sample of the set was provided by the requestor. Neither the garment top nor the garment bottom contained hangtags or other markings inside.

A swatch from the garment top and garment bottom were submitted to U.S. Customs and Border Protection ("CBP") Laboratories and Scientific Services ("CBP Lab") for analysis. CBP Lab Reports NY20231181 (garment bottom) and NY20231182 (garment top), both dated March 6, 2024, indicated that the garment fabric is a weft knitted fabric wholly constructed of synthetic man-made yarns with a horizontal stitch count of 19 stitches per centimeter. The fabric weights for both the garment top and bottom were predominately polyester, with less than 10 percent consisting of elastomeric fibers.

The garment top and garment bottom will be imported together and sold as a set exclusively on QVC's website. QVC intends to market the set as sleepwear pajamas within the Adaptive and Accessible section of its website, which features clothing and other products for adaptive use. QVC did not specify which disability the set is designed or marketed for and did not provide additional marketing materials. On QVC's website there is an Adaptive and Accessible section, with a subsection for Women's Adaptive Clothing and a subsequent subsection for "Sleepwear." The Women's Adaptive Clothing "Sleepwear" subsection consists of an adaptive zip front lounge bra, two styles of adaptive accessible lounge joggers, and a Yarrow Maysoon Adaptive Pajama Shirt and Pajama Pants. See QVC's Women's Adaptive Sleepwear, https://www.qvc.com/adaptive-and-accessible/adaptive-clothing-and-shoes/women/adaptive-clothing/sleepwear/_/N-jad5j6/c.html?limit=96&ro=15j3xd2Zb6zp8qZjad5j6&navSrc=REFINE#plModule (last visited May 3, 2024). The Yarrow Maysoon Adaptive Pajama Shirt and Pajama Pants, sold separately, are advertised as an adaptive and "ultra cute (hello, pretty piping), delightfully comfy (oooh, cotton!), and pretty much an all-day lounge-sesh go-to." See, e.g., QVC's Women's Adaptive Sleepwear, Yarrow Maysoon Adaptive Pajama Shirt, https://www.qvc.com/yarrow-maysoon-adaptive-pajama-pants.product.A486651.html (last visited May 3, 2024).

ISSUES:

1) What is the tariff classification of the women's pajamas set? 2) Is the set eligible for duty-free treatment under subheading 9817.00.96, HTSUS, as articles specifically designed or adapted for the handicapped?

LAW AND ANALYSIS:

1. Classification

Classification decisions under the HTSUS are made in accordance with the General Rules of Interpretation ("GRIs"). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.

The 2024 HTSUS provisions under consideration are as follows:

6104 Women's or girls' suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib or brace overalls, breeches and shorts (other than swimwear), knitted or crocheted:

6104.23 Ensembles:

6104.23.00 Of synthetic fibers

* * *

6108 Women's or girls' slips, petticoats, briefs, panties, night dresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted:

6108.32 Nightdresses and pajamas:

6108.32.00 Of man-made fibers

* * *

Note 3 to Chapter 61, HTSUS, provides in pertinent part:

For purposes of headings 6103 and 6104:

. . .

b) The term "ensemble" means a set of garments (other than suits and articles of heading 6107, 6108, or 6109), composed of several pieces made up in identical fabric, put up for retail sale, and comprising:

- one garment designed to cover the upper part of the body, with the exception of pullovers which may form a second upper garment in the sole context of twin sets, and of waistcoats which may also form a second upper garment, and

- one or two different garments, designed to cover the lower part of the body and consisting of trousers, bib and brace overalls, breeches, shorts (other than swimwear), a skirt or divided skirt.

All of the components of an ensemble must be of the same fabric construction, style, color and composition; they also must be of corresponding or compatible size. The term "ensemble" does not apply to track suits or ski-suits of heading 6112.

* * *

The product at issue here is a women's pajamas set featuring a garment top and garment bottom, constructed of the same fabrics (polyester and spandex knit jersey). As confirmed by the CBP Lab in Reports NY20231181 and NY 20231182, dated March 6, 2024, the garment top and bottom consist of the same fabric with the same stitching and weights. The garment top features magnets that allow for easier opening and closing, with buttons sewn on the right front placket to give the appearance of button-closure. The garment bottoms feature three hand straps along the garment bottom waist (one on each side and one on the back) intended to facilitate the dressing and undressing of the individual wearing it. QVC has indicated that the garment top and garment bottoms will be sold as a set and marketed and sold as sleepwear pajamas on its website.

At the outset, CBP must determine whether the set is classifiable as an outerwear ensemble (i.e., loungewear) under heading 6104, HTSUS, or as sleepwear under heading 6108, HTSUS. The Court of International Trade ("CIT") determined that a garment's primary use for a private activity (i.e., sleeping) to be instructive in classifying a garment as pajamas under heading 6108, HTSUS. See International Home Textile, Inc. v. United States, 21 C.I.T. 280, 282 (1997), aff'd International Home Textile, Inc., v. United States, 153 F.3d 1378 (Fed. Cir. 1998). Sleepwear is "characterized by a sense of privateness (underpants and briefs) or private activity (sleeping, bathing, and dressing). Id. Conversely, garments constructed, designed, and marketed in a manner that would allow it to be worn at informal social occasions in and around the home reflect more of a "loungewear" designation. Thus, in considering whether a garment is loungewear or sleepwear, the threshold question is whether the garment is appropriate to wear in informal social activities, or if it is characterized by its sense of privateness or private activity. See Headquarters Ruling Letter ("HQ") H003893, dated March 11, 2010.

Furthermore, where a garment's design is ambiguous and not readily discernible as either sleepwear or loungewear, CBP looks at other factors such as: the expectations of the ultimate purchasers, the channels, class or kind of trade in which the merchandise moves, the environment of the sale and manner in which the merchandise is advertised and displayed, the use in the same manner as merchandise which defines the class, the recognition in the trade of this use, and documentation incidental to the purchase and sale of the merchandise, such as purchase orders, invoices, and other internal documentation. See St. Eve International, Inc., v. United States, 27 C.I.T. 758, 761-62, 767-68, 772 (2003) (cited by HQ H003893).

CBP has on several occasions determined whether a garment is leisurewear or sleepwear for purposes of tariff classification. In HQ H330720, dated June 2, 2023, CBP detailed the factors considered in determining whether a garment is considered loungewear or sleepwear for purposes of classification where a garment's design is ambiguous and not readily discernible as either sleepwear or loungewear. In such instances, in addition to examining a garment's physical characteristics (i.e., type of fabric used, degree of comfortability and translucency of the fabric), another factor for consideration includes the environment of sale (such as advertising, marketing, and the expectations of the ultimate purchaser). In HQ H330720, CBP determined that the two styles of men's pajamas at issue (also sold as a set with a garment top and garment bottom) that featured belt loops on the garment bottoms intended for adaptive use were sleepwear and classifiable under heading 6107, HTSUS, because the pajamas were constructed of a 100% cotton knit fabric featuring a holiday village and blue star design traditional of sleepwear, labeled as "Intimates" and "Sleepwear" on the inside of the garments, and marketed and sold as sleepwear on the company's website.

Alternatively, in HQ H304295, dated November 13, 2019, CBP determined that a women's set, marketed as pajamas, was properly classified as loungewear because the physical characteristics of the garment were not "characterized by a sense of privacy as is typical of sleepwear." The set, sold together, featured a rayon, polyester, and spandex knit blend cowl neck top, with an attached hood and kangaroo pouch, and loose-fitting pants with a drawstring waist. In that case, CBP found that the set was loose, casual clothes that were designed to be worn for comfort, not just sleep, and could be worn for "watching movies at home with guests, barbequing at a backyard gathering, doing outside home and yard maintenance, washing the car, walking the dog, and the like." Id. When distinguishing between loungewear and sleepwear, CBP found that sleepwear classified under heading 6108, HTSUS, is characterized by a sense of privateness or private activity and is worn in private situations such as in one's home while alone or in the company of only intimate friends and close family. Id. Consequently, CBP classified the set as loungewear under headings 6104, HTSUS, (for the garment bottoms) and 6110, HTSUS, (for the garment top), respectively.

Here, the garment set's physical characteristics and information supplied by QVC regarding marketing, advertising, or other details about the environment of sale of the set informs the basis of CBP's determination. The garment set, composed of a matching garment top and bottom, is constructed of polyester and spandex knit jersey. As such, the fabrics are therefore soft to the touch and stretchy, features of either sleepwear pajamas or loungewear. The garment top features buttons sewn on the right front placket to give the appearance of a button-closure, while magnets are what fastens the top together. The inclusion of these buttons to give the appearance of a button-closure suggests that the top may be worn for either sleeping or limited social engagements in which the appearance of a button-closure would be important for the individual wearing the garment. The garment bottoms, including the hand straps to facilitate dressing, also do not evidence a sense of privacy or intimacy that would render the garment only suitable for sleeping. Careful examination of the set does not reveal elements characterized by a sense of privateness or private activity. Consequently, the physical characteristics of the set alone are insufficient to establish it as sleepwear instead of loungewear.

In its ruling request, QVC states that it intends to market the set as sleepwear on its website. Beyond this statement, QVC did not provide additional information on marketing and design. The samples provided did not include hangtags or other markings that would advertise or market the product as "sleepwear." In reviewing QVC's website, CBP notes that there is only one comparable item sold in the section where the garment set subject to this ruling is intended to be sold, which is the "Yarrow Maysoon Adaptive Pajama Shirt and Pants," sold separately. As noted above, the Yarrow Maysoon products are listed under the "Sleepwear" category but are advertised as a garment for "an all-day lounge-sesh go-to." Thus, neither the set at issue here, nor the Yarrow Maysoon Adaptive Pajama Shirt and Pants sold on QVC's website, are clearly marketed as sleepwear and instead seemingly suggest a loungewear set. Indeed, the other three items listed under QVC's Women's Adaptive Clothing "Sleepwear" section all contain the words "lounge" in the description (Slick Chicks Adaptive Zip Front Lounge Bra, Slick Chicks Adaptive Accessible Lounge Joggers in Black and in Plum). See QVC's Women's Adaptive Sleepwear, https://www.qvc.com/adaptive-and-accessible/adaptive-clothing-and-shoes/women/adaptive-clothing/sleepwear/_/N jad5j6/c.html?limit=96&ro=15j3xd2Zb6zp8qZjad5j6&navSrc=REFINE#plModule (last visited May 3, 2024). Thus, inclusion of the set at issue in this section of QVC's website, albeit under the subsection title of "Sleepwear," would suggest that the set is loungewear like the other items listed.

In the absence of physical characteristics that clearly identify the garment set as "sleepwear" for purposes of tariff classification, as well as the absence of extrinsic evidence on marketing the garment as sleepwear specifically, CBP cannot consider the garment top and bottom at issue to be "sleepwear" for purposes of classification under subheading 6108.32.00, HTSUS. As the garment top and bottom are constructed of the identical fabric, confirmed by the CBP Lab, are sold as a set, and are more accurately described as a loungewear set for purposes of tariff classification, the garment top and bottom is classified under subheading 6104.23.00, HTSUS, as an "ensemble."

1. Subheading 9817.00.96, HTSUS, Eligibility

CBP next considers whether the women's pajamas set is eligible for duty-free treatment under subheading 9817.00.96, HTSUS, as "articles specially designed or adapted for the handicapped." The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials of 1982, Pub. L. No. 97-446, 96 Stat. 2329, 2346 (1983) established the duty-free treatment for certain articles for the handicapped. 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.

Subheading 9817.00.96, HTSUS, covers: "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." In Sigvaris, Inc. v. United States, 227 F. Supp 3d 1327, 1336 (CIT 2017), aff'd, 899 F.3d 1308 (Fed. Cir. 2018), the CIT explained that:

The term "specially" is synonymous with "particularly," which is defined as "to an extent greater than in other cases or towards others." Webster's Third New International Dictionary 1647, 2186 (unabr. 2002). 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 Third New International Dictionary 612 (unabr. 2002).

Subheading 9817.00.96, HTSUS, 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. Thus, eligibility within subheading 9817.00.96, HTSUS, depends on whether the article 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 under U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS.

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. While the HTSUS does not establish a clear definition of substantial limitation, in Sigvaris, 227 F. Supp 3d at 1335, the CIT explained that "[t]he inclusion of the word 'substantially' denotes that the limitation must be 'considerable in amount' or 'to a large degree.'"

CBP must first evaluate "for whose, if anyone's, use and benefit is the article specially designed," and then, whether "those persons [are] physically handicapped []." Sigvaris, 899 F.3d at 1314. 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.

The Court of Appeals for the Federal Circuit ("CAFC") clarified that to be "specially designed," the 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. This definition of 'specially designed' is consistent with factors that Customs uses in discerning for whose use and benefit a product is 'specially designed" ... we adopt them in our analysis ...." Id. at 1314-15. In Danze, Inc. v. United States, 319 F. Supp. 3d 1312, 1326 n.22 (CIT 2018), the CIT held that ADA compliance alone was insufficient to show that an item was "specifically designed or adapted" for the handicapped under subheading 9817.00.96, HTSUS.

Thus, to determine whether the women's pajamas set is "specially designed" for the use or benefit of a class of persons to an extent greater than for others, we must examine the following five factors used by CBP and adopted by the CAFC in Sigvaris, 899 F.3d at 1314-15: (1) physical properties of the article itself (e.g., whether the article is easily distinguishable in design, form and use from articles useful to non-handicapped persons); (2) presence of any characteristics 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) importation by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (4) sale in specialty stores that serve handicapped individuals; and (5) indication at the time of importation that the article is for the handicapped. See also T.D. 92-77 (26 Cust. B. 240 (1992)).

The first two factors to consider in determining whether an article is "specially designed," are the physical properties of the article and any characteristics of the article that create a substantial probability of use by the chronically handicapped such that the article is easily distinguishable from articles useful to the general public. In HQ H300660, dated February 27, 2019, CBP considered a man's three-piece suit featuring magnetic closures concealed behind buttons intended for adaptive use. There, CBP found that "[m]agnetic closures for garments have become mainstream in their use." Id. CBP determined that while magnetic closures on such garments were highlighted as a feature for those with limited dexterity and therefore "adaptive clothing," the magnetic closure feature was also highlighted as beneficial or useful for those who "would like to avoid the hassle of buttons." Id. CBP noted that similar garments with magnetic closures as part of their design were sold at several department stores and luxury apparel stores and were marketed to the general public rather than any special class or group of individuals. Id. CBP concluded in HQ H300660 that as a result of their mainstream application, magnetic closures are not limited to use in garments intended for the handicapped.

In HQ H318562, dated July 20, 2022, CBP again considered a garment featuring magnetic closures for eligibility under subheading 9817.00.96, HTSUS, as specially designed or adapted for use by the handicapped. There, the garment was a ladies' tunic top featuring one front panel and two back panels that overlapped each other and were secured by two magnetic closures at the top of each shoulder. The overlapping back panels were otherwise open, except for the magnetic shoulder closures. In addition to the rear opening of the garment, there was rouching built into the sleeves with elastic that was intended to help to keep the sleeves in place when pushed up to prevent the sleeves from getting caught on or dirtied by wheelchair wheels. In HQ H318562, CBP cited HQ H300660 and noted that magnetic closures were not an exclusive feature of adaptive clothing. However, CBP found that the placement of the magnets on the garment at the top of the shoulder in conjunction with the overlapping back panels made the subject tunic specially designed and sold for use by the handicapped community. CBP reviewed several tunic styles and found that overlapping back panels were not a common style in mainstream tunics. As the overlapping back panels were useful for ease of dressing, CBP determined in HQ H318562 that the magnetic closures at the top of the shoulder and overlapping back panels created "a substantially greater probability of use by the handicapped versus the general public."

In applying the above enumerated factors, CBP notes that there are magnetic closures at the front of the garment top, and fabric handle "loops" sewn into the back waistband of the garment bottom. There are no fabric handle loops sewn into the sides of the waistband or front of the waistband of the garment bottoms, and there are no magnets in the garment bottoms. Taking into consideration HQ H300660, in which magnetic closures are not an exclusive feature of garments specially designed or adapted for use by the handicapped, CBP looks at whether other physical characteristics of the garment top and bottom, in total, evidence a substantially greater probability of use by the handicapped versus the general public. On balance, the physical features of the garment top and garment bottom, either individually or when viewed as a set, do not "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." Unlike the ladies' tunic top in HQ H318562, besides the magnetic closures on the garment top, there are no other physical features indicating the article was specially designed or adapted for use by the handicapped. Moreover, the garment bottoms are otherwise standard bottoms with an elasticized waistband. It is unclear upon review what benefit three fabric handle loops sewn only into the back of the garment bottom's waistband confer to someone with limited ability to dress themselves. Therefore, neither the magnetic closures on the garment top nor fabric handle loops on the garment bottoms reflect physical characteristics such that the article is easily distinguishable from articles useful to the general public.

In considering factors other than the physical characteristics of the garment top and bottom, CBP also reviews whether it is imported by manufacturers or distributors recognized to be involved in this class or kind of articles for the handicapped and whether it is sold in specialty stores that serve handicapped individuals. As noted above, QVC provided no information on marketing materials for the garment. QVC is not known to be a manufacturer or distributor of articles specifically designed for use by the handicapped, but instead as a purveyor of varying articles available for purchase by phone or online.

Taken together, the five factors adopted by the CAFC and CBP weigh against a determination that QVC's garment top and bottom are specially designed for the use or benefit of the blind or other physically or mentally handicapped persons. Consequently, CBP finds that the garment top and bottom at issue are not specially designed or adapted for use by the handicapped. Therefore, QVC's garment top and bottom are not eligible for duty-free treatment under subheading 9817.00.96, HTSUS.

HOLDING:

By applying GRI 1, the women's garment top and bottom at issue are classified under subheading 6104.23.00, HTSUS, as "Women's or girls' suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Ensembles: Of synthetic fibers." The 2024 column one general rate of duty is 32% ad valorem with respect to the garment top, and 14.9% ad valorem with respect to the garment bottom.

Additionally, the women's garment top and bottom pajama set is not eligible for duty-free treatment under subheading 9817.00.96, HTSUS, as articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at https://hts.usitc.gov.

Please note that 19 C.F.R. 177.9(b)(1) provides that "[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by a Customs Service field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based."

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, this ruling should be brought to the attention of the CBP officer handling the transaction.


Sincerely,

For Sarah Kafka, Chief Food, Textiles, and Marking Branch
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90 K Street, NE, 10th Floor
Washington, DC 20229-1177