CLA-2 CO:R:C:S 556090 SER
Mr. Ronald B. McKenny
John V. Carr & Sons, Inc.
6 Maple Street, P.O. Box 307
Derby Line, VT 05830
RE: Duty-free treatment under HTSUSA subheading 9817.00.96 of
support garments; Nairobi Protocol; NYRL 839139
Dear Mr. McKenny:
This is in reference to your letters of December 20, 1990
and June 19, 1991, providing further information concerning a
previous request for reconsideration of New York Ruling Letter
(NYRL) 839139 dated April 27, 1989. You ask that certain
products be examined for possible duty-free treatment under
subheading 9817.00.96, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). In a letter to you dated September
13, 1990 (555690), we advised that additional information
regarding the products was required before a ruling could be
issued concerning their eligibility for subheading 9817.00.96,
HTSUSA, duty-free treatment.
FACTS:
The products at issue are described as a brassiere made from
nylon fabric with retainers for breast prosthesis, and an
abdominal supporting corset made from 75 percent polyester and 25
percent cotton. In NYRL 839139, Customs determined that the
brassiere was classified in subheading 6212.10.2020, HTSUSA, and
the corset was classified in subheading 6212.30.0020, HTSUSA.
Letters from various medical centers, enclosed with your
submissions, state that the corset support garments are utilized
by individuals diagnosed with arthritis, scoliosis, hernia
problems and post-polio syndrome. These support garments are
designed and constructed to give additional body structural
support for these individuals. They will be imported into the
U.S. from Canada.
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ISSUE:
Whether the products at issue qualify as "[a]rticles
specially designed or adapted for the use or benefit of the blind
or other physically or mentally handicapped persons" under
subheading 9817.00.96, HTSUSA.
LAW AND ANALYSIS:
The Nairobi Protocol to the Agreement on the Importation of
Educational, Scientific, and Cultural Materials Act of 1982,
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, HTSUSA. These tariff
provisions specifically state that "[a]rticles specially designed
or adapted for the use or benefit of the blind or other
physically or mentally handicapped persons" are eligible for
duty-free treatment.
U.S. Note 4(a), subchapter XVII, Chapter 98, HTSUSA, states
that, "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(b), subchapter XVII, Chapter 98, HTSUSA, which
establishes limits on classification of products in this heading
states as follows:
(b) Subheadings 9817.00.92, 9817.00.94 and 9817.00.96
do not cover--
(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.
A primary issue is whether the individuals that benefit
from these articles are physically handicapped within the meaning
of U.S. Note 4(a). It is our opinion that those individuals who
suffer significantly from post-polio syndrome, scoliosis,
congenital deformities, arthritis, etc., and for whom the corset
support garments are designed, clearly are individuals who have
an impairment which substantially limits one or more of the major
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life activities discussed in U.S. Note 4(a). Without the
support garments they are substantially limited in their ability
to walk and perform manual tasks.
However, it is our opinion that the individuals for whom the
brassieres are intended are not handicapped persons encompassed
by U.S. Note 4(a). These articles, brassieres with retainers for
breast prosthesis, are intended for women who have had a
mastectomy. These women are not substantially limited in any
major life activity. In actuality, the focus of post-operative
therapy for women who have had mastectomies is the reassurance
that they are fully capable of leading full, productive lives
after their operations. Therefore, the brassieres at issue are
not specially designed for the use or benefit of handicapped
persons within the meaning of U.S. Note 4(a).
Since corsets, in general, are often utilized for cosmetic
purposes, it must be examined whether the support corset at
issue here is precluded from duty-free treatment by U.S. Note
4(b)(ii), which precludes cosmetic articles. It is our position
that the manner in which the support corsets are constructed--
utilizing heavy-weight, highly-durable fabric-- and the fact that
they are sold in medical supply stores, distinguishes them from
those corsets which are utilized for merely cosmetic purposes,
and are available at retail stores such as Sears and J.C. Penney.
The design of the support garments takes into consideration the
physical needs of those suffering from the above-described
conditions. Moreover, these support garments are also frequently
prescribed by physicians, and often are made to order depending
on the individual needs of the user. These factors, taken
together, indicate that the support garments are not used for
mere cosmetic purposes and, therefore, are eligible for duty-free
treatment.
HOLDING:
The brassieres with retainers for breast prosthesis are
designed for women who have had mastectomies. It is our opinion
that these persons are not handicapped within the meaning of
subheading 9817.00.96, HTSUSA, and, therefore, the subject
brassieres are ineligible for duty-free treatment under this
tariff provision. The proper classification for the brassieres
is subheading 6212,10.2020, HTSUSA, dutiable at a rate of 18% ad
valorem and subject to textile category number 649. If all
requirements of the U.S.-Canada Free Trade Agreement are met, the
rate of duty would be 12.6% ad valorem.
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The abdominal supporting corsets are specially designed for
the use or benefit of handicapped persons, are not cosmetic in
nature so as to be precluded by the exclusions of U.S. Note 4(b),
and, therefore, are eligible for duty-free treatment under
subheading 9817.00.96, HTSUSA.
Sincerely,
John Durant, Director
Commercial Rulings Division