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HQ 556090


November 8, 1991

CLA-2 CO:R:C:S 556090 SER

CATEGORY: CLASSIFICATION

TARIFF NO.: 6212.10.2020, 6212.30.0020, 9817.00.96

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.

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
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.

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

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