CLA-2 CO:R:C:S 555704 SER
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.
-2-
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.
-3-
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.
-4-
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