CLA-2 CO:R:C:S 558684 DEC
Area Director of Customs
New York Seaport Area
6 World Trade Center - Room 432
New York, New York 10048
RE: Application for Further Review and Protest No. 1001-4-102908, contesting
denial of duty-free treatment of the "TV Listener" as
articles for the handicapped
under the Nairobi Protocol; T.D. 92-77; HRL 556139; HRL
950772
Dear Sir:
The above-referenced protest, timely filed by Galvin &
Mlawski, on behalf of UNISAR, Incorporated, protests the
assessment of duties by your office on the TV Listener Infrared
Cordless TV Headset System (TV Listener) units under heading
8518, Harmonized Tariff Schedules of the United States (HTSUS).
The merchandise at issue was imported on June 23, 1993.
FACTS:
The TV Listener is imported by UNISAR, Incorporated. The
devices allow sound and other audio/voice light waves to be
recognized and transmitted via an infrared signal to a
receiver/headset. The transmitter is powered by a standard
electric current and the headsets/receivers are battery-powered.
The transmitter, receiver/headset, and the unit's power supply
are imported together.
The importer/protestant claims that these units are designed
to enable hard-of-hearing individuals to compensate for their
level of hearing loss. In addition to receiving transmissions
from the transmitter, the receiver/headsets can function as a
receiver to which a hearing aid-related accessory can be attached
with an adapter. The receiver/headsets include an adjustable
balance control so that more sound can be directed to the ear
with greater hearing loss, and an unusually high volume level.
ISSUE:
Whether the TV Listener is eligible for duty-free treatment
pursuant to the Nairobi Protocol.
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 Competitive Act of 1988, provided for the
implementation of the Nairobi Protocol into subheadings
9817.00.92, 9817.00.94, and 9817.00.96, Harmonized Tariff
Schedule of the United States ("HTSUS"). These tariff provisions
specifically provide 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.
United States Note 4(a), subchapter XVII, Chapter 98, HTSUS,
("Note 4(a)"), provides 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."
In Headquarters Ruling Letter (HRL) 556139, dated November
3, 1991, Customs determined that the "Audiolink", a device that
permits television sound and other audio/voice light waves to be
recognized and transmitted via an infrared signal to a
receiver/headset, was properly classified under subheading
9817.00.96. The TV Listener performs the same function, allowing
the hearing impaired increased access to television and other
types of audio/voice transmissions in various places of public
accommodation, such as movie theaters and auditoriums.
Unlike the Audiolink that was the subject of HRL 556139, the
TV Listener does not have an adjustable tonal control to allow an
individual or an audiologist to set the parameters to the
frequencies to compensate for the individual's specific hearing
loss. Another distinction between HRL 556139 and the instant
case is that the importer of the Audiolink is recognized as a
distributor of articles for the hearing impaired while the
importer of the TV Listener markets the product to the general
public and not just to the hearing impaired. For example, in the
Orlando Sentinel Tribune, the following article, entitled "What's
New", introduces two new listening devices produced by UNISAR:
The first is the "TV Listener Infrared Cordless TV
Headset System,"
which allows you to watch and listen to the bedroom TV
while your
lovely or handsome spouse sleeps or, dare we say reads.
The TV
Listener is made by UNISAR, Inc. and is available at
Brookstone and
Sharper Image . . . UNISAR's other headset device has a
very different
purpose. It lets pregnant moms hear what's going on
inside their
tummies. Moms can listen with a headset, record the
sounds if desired,
and with the deluxe model, amplify the sounds so a
whole crowd can
listen in. Harry Wessel, What's New, Orlando Sentinel
Trib.,
Apr. 19, 1993, at D2.
We note that there is no mention in the article of any special
design attributes the TV Listener may have to aid the hearing
impaired.
In HRL 950772, dated March 3, 1992, Customs determined that
the "Tel-Ease" telephone which was designed with jumbo size
buttons, a flashing light, an automatic redial button, and an
ability to increase the incoming and ringer volume was denied
eligibility for duty-free entry under the Nairobi Protocol. In
denying the protest, Customs stated that:
The legislative history of subheading 9817.00.96,
HTSUS, discusses
the concern of Congress that the design, modification
or adaption of
an article must be significant, so as to clearly render
the article for use
by handicapped persons. (Senate Report (Finance
Committee) No.
97-564, Sept. 21, 1989). It is our position that the
degree of additional
features for the benefit of the handicapped in the
phone under
consideration is minimal and is, therefore,
insufficiently significant to
alter the basic character of a conventional phone. For
example, while
the large numbers on the dial buttons would certainly
help anyone,
visually impaired or not, they intrinsically constitute
an attractive design
feature that would appeal to many people who are not
visually impaired.
The telephones are also not marketed and sold just to
the hearing and
sight impaired but are available to the general public.
Tone and volume
control, speed dial, flashing light, and number memory,
are all features
that are increasingly found in standard telephones sold
to the general
public.
Thus, while the "Tel-Ease" telephone may be of
benefit to the sight
and hearing impaired, we do not believe it is the type
of equipment which
can be said to be specially designed or adapted for
handicapped people. Therefore, the "Tel-Ease"
telephones, are classified in subheading
8517.10.70, HTSUS, and are not eligible for duty free
treatment in
subheading 9817.00.96, HTSUS.
For the TV Listener to be eligible for duty-free treatment,
it must be determined that it is "specially designed or adapted
for the use or benefit of the blind or other physically or
mentally handicapped." The only adaptation that the TV Listener
possesses that is of special benefit to the hearing impaired is
the available jack adapter for a hearing aid that is added for a
nominal cost. The other attributes of the TV Listener which
include an adjustable balance control and unusually high volume
control are not unique adaptations for headphones. These
particular products are not marketed exclusively to the hearing
impaired. Individuals who wish to watch television or listen to
music without disturbing others would also be drawn to the
wireless feature of the product. Even though the article may be
used by the hearing impaired, the TV Listener does not satisfy
the requirement that it be specially designed for their benefit.
The TV Listener, therefore, is ineligible for duty-free treatment
under subheading 9817.00.96.
HOLDING:
The TV Listener is not specially designed or adapted for the
handicapped. Therefore, it is ineligible for duty-free treatment
under subheading 9817.00.96, HTSUS. Therefore, the protest
should be denied.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, LEXIS, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant
Director, Commercial Rulings Division