HQ 0555704 - Duty-free treatment of prosthetic devices; Nairobi Protocol; Educational, Scientific, and Materials Importation Act; Richards Medical v. U.S.; Glass Products, Inc. v. U.S.; Mattel, Inc. v. U.S.; Westfield Manufacturing Company v. U.S. - United States International Trade Commision Rulings

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HQ 555704
June 24, 1991

CLA-2 CO:R:C:S 555704 SER

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.00.96

Salvatore E. Caramagno, Esq.
Ross & Hardies
888 16th St., N.W.
Washington, D.C. 20006-4103

RE: Duty-free treatment of prosthetic devices; Nairobi Protocol; Educational, Scientific, and Materials Importation Act; Richards Medical v. U.S.; Glass Products, Inc. v. U.S.; Mattel, Inc. v. U.S.; Westfield Manufacturing Company v. U.S.

Dear Mr. Caramagno:

This is in reference to your letters of July 27, 1990, and May 6, 1991, on behalf of Otto Bock Orthopedic Industry, Inc., concerning duty-free treatment under subheading 9817.00.96, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), for certain prosthetic devices.

FACTS:

The merchandise at issue consists of prosthetic devices designed for amputees who have suffered the loss of limb through accident or disease. In the instant case, two makes of protheses are involved: prostheses of crustacean design and modular prostheses. Prostheses of crustacean design are usually fabricated of wood or plastic. Modular prosthesis have a metal tube frame construction.

The various types of prostheses imported include those for lower extremities such as feet, below-knee, above-knee, hip disarticulation, and knee-shin, and upper extremities such as arms, hands, electronically controlled hands, digits, etc. In some instances, depending on the needs of the individual utilizing the devices, the articles are used in conjunction with each other, and are designed for such interaction. For example, the above-the-knee prostheses might be used with the knee joint prostheses.

ISSUE:

Whether the prosthetic devices are eligible for duty-free treatment under subheading 9817.00.96, HTSUSA.

LAW AND ANALYSIS:

Presidential Proclamation 5978 and section 1121 of the Omnibus Trade and Competitiveness Act of 1988 provided for the implementation of the Nairobi Protocol to the Agreement on the Importation of Educational, Scientific, and Cultural Materials (Florence Agreement) into the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Included in this agreement is the duty-free treatment of certain articles for the handicapped, which is provided for in heading 9817, HTSUSA. This heading specifically states that "articles 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) to 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." The prosthetic articles at issue are for the benefit of amputees who have suffered the loss of limb through accident or disease. Clearly, these individuals are substantially limited in major life activities, primarily walking or performing manual tasks, and, therefore, are handicapped within the definition provided for in this heading.

U.S. Note 4(b), subchapter XVII, Chapter 98, HTSUSA, which establishes limits on classification of products in this heading, states as follows:

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.

The issue has been previously discussed as to whether prosthetics devices, utilized by individuals who need the articles to replace diseased extremities, are therapeutic in nature, and, therefore, precluded from duty-free treatment under U.S. Note 4(b). The court in Richards Medical Company v. United States, 720 F.Supp. 998 (CIT 1989), aff'd 910 F.2d 828 (Fed. Cir. 1990), held that the prosthetic articles at issue were not therapeutic, within the meaning of the Educational, Scientific, and Cultural Importation Act of 1982, because they neither heal the handicapped person nor cure the disease which caused the handicap. This holding is controlling on the prosthetic devices at issue in this case, and, therefore, they would not be precluded for this reason from duty-free treatment under U.S. Note 4(b).

Customs has previously ruled that subheading 9817.00.96, HTSUSA, provides duty-free treatment to "articles" and not to "parts" of articles. See, Headquarters Ruling Letters (HRLs) 086303 dated February 13, 1990, and 087559 dated October 9, 1990. The conclusions reached in these rulings were simply a restatement of the well established principle of Customs law, reiterated by the courts, "that a tariff provision which does not specifically provide for parts does not include them." Glass Products, Inc. v. United States, 10 CIT 253, 255 (1986). Since, in some instances based on the needs of the individual utilizing the prosthetic devices, the devices are used in conjunction with other prosthetic devices, there was some concern that these articles could be construed as "parts".

It is our position that these prosthetic devices, though capable of use in conjunction with other prosthetic devices, are complete articles and not parts of articles. It is a "well known maxim that the mere fact that two articles are designed and constructed to be used together does not necessarily make either a part of the other." Mattel, Inc. v. United States, 475 F. Supp. 683, 687 (Cust. Ct. 1979), rev'd on other grounds, 624 F.2d 1076 (C.C.P.A. 1980). In addition, "[i]t must be shown that the article claimed to be a part subserves an essential purpose in the thing for which it is destined, without which the article it is to be joined could not function as such article." Westfield Manufacturing Company v. United States, 191 F. Supp. 578, 582 (Cust. Ct. 1961), aff'd, 49 C.C.P.A. 96 (1962).

In this case, each prosthetic device is functionally self- sufficient. Often an amputee may only require the fitting of a foot or hand without any other prosthetic device. The fact that an individual may need to be fitted for both a foot and the connecting limb does not alter the fact that the same foot functions properly and independently for an individual who only needs a foot. Each article is not necessarily essential to the proper functioning of the other, and, therefore, should not be considered a part.

You have advised that although some parts of prosthetic devices will be imported, they will not be entered under 9817.00.96, HTSUSA.

HOLDING:

The prosthetic articles at issue are entirely self- functioning, independent articles and not "parts" of articles specially designed or adapted for use or benefit of the handicapped, and, therefore, are eligible for duty-free treatment under subheading 9817.00.96, HTSUSA.

Sincerely,

John Durant, Director
Commercial Rulings Division

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