CLA-2 RR:TC:SM 559439 MLR
Port Director
U.S. Customs Service
511 N.W. Broadway
Portland, OR 97209
RE: Application for Further Review of Protest No. 2904-95-100188; Denial of duty exemption under HTSUS subheading
9817.00.96 to infra-red transmitters and receivers; Nairobi
Protocol; specially designed or adapted for the handicapped
Dear Sir:
The above-referenced Application for Further Review timely
filed by Infra-Link, Inc., contests the denial of the duty
exemption of subheading 9817.00.96, Harmonized Tariff Schedule of
the United States (HTSUS), to infrared transmitters and
receivers.
FACTS:
The articles at issue are part of the Infra-Link system, a
product line of remote control devices (transmitters, receivers,
relays, and intercoms) that use infrared transmission and
reception. These devices control the operation of electrical
appliances that normally are accessed by manual switching.
Customs in Portland, Oregon, classified the transmitter, receiver
and relays under subheading 8537.10.90, HTSUS, and the intercoms
under subheading 8517.81.00, HTSUS.
In a letter dated June 8, 1995, to the District Director,
Portland, Oregon, and in a letter dated December 1, 1995, the
President of Infra-Link states that these articles are solely
sold and designed specifically for the physically disabled and
are not used for any other purpose, and that the company was
created for the sole purpose of marketing products to the
physically disabled. In a letter dated June 15, 1995, it is
stated that GEWA, the manufacturer of the articles at issue, was
created for the sole purpose of serving the disabled.
Two systems are specifically described. The literature
describing a "First Aide Kit" states that an infrared transmitter
can control the telephone, TV, radio, VCR, lamps, alarms,
electric-bed functions, window openers, door openers, and powered
draperies. The brochure states that the transmitter and control
switches can be individually adapted to the user's need. For
example, the transmitter and sip-or-puff switch are attached to a
specially designed wheeled-base stand used to hold Infra-Link
transmitters and receivers, and the transmitter can be used by
direct touch of the keyboard or simple row/column scanning with
any single switch. The brochure also states that unlike common
household infrared transmitters, these transmitters emit a very
strong signal making it unnecessary to "aim" at the target
receivers. The GEWA and Infra-Link product lines include
components for attaching the equipment to wheelchairs and beds.
The literature describing "Elevator Control" states that the
"wireless remote control system uses infrared signals to enable
physically disabled individuals to access the elevator, open the
door, select the floor level, and use the emergency call button."
The receiver is placed above the elevator door and when the
receiver is activated by a transmitter, the elevator is called
and the automatic sliding doors of the elevator are opened. The
brochure also depicts a person in a wheelchair using the article.
Another brochure describes the GEWA "Smart House," the "smart
living environment for those with special needs- the GEWALINK
remote operating system."
In letters dated November 22, 1995, and December 1 and 12,
1995, the special attributes of the various articles are
described. The model 4257 programmable transmitter is operated
by an external switch, such as a switch operated by a sip and
puff, that sends a unique infrared signal to various receivers
when activated. The unique scanning also enables the disabled to
select from 64 unique channels. When the special switch is
activated, each channel is scanned by a series of LED lights.
When the light reaches the appropriate channel, the disabled
person activates the switch and, in turn, the special infrared
signal is sent to the appropriate receiver. The model 4255,
4229, and 4280 transmitters are designed for those disabled
individuals who require less function and who may require the use
of special mouth sticks without programmable memory. Each of
these transmitters can also be operated with a single switch
attachment if required. This single switch can be either a sip
and puff used by quadriplegics or other specially modified
switches operated by persons with other types of disabilities.
It is stated that the range of infrared transmitter is selected
based on the ability of the user, and unlike common TV remote
control transmitters, the Infra-Link units are powerful enough to
operate devices without having to accurately aim them at the
receiving unit. The transmission codes are also stated to be
proprietary and are not based on consumer devices, and it is
stated that consumer devices cannot operate elevators or hospital
beds, but rather are typically designed only to operate
electrical appliances via relays that control electrical outlets.
The GEWA model 4257 transmitter is capable of being operated by a
standard IBM compatible computer.
The model 4215, 4210, and telephone receivers are stated to
be designed to communicate with the remote infrared transmitter,
and they are wired to the electrical device which is to be
operated. Another receiver, a special switch, is stated to be
designed to enable the most severely disabled to turn the lights
on or off. Certain receivers activate elevator controls, and
when installed in parallel, the elevator may be called, a floor
level may be selected, and the emergency call button may be used.
In essence, it is stated that the receivers are specifically
designed to receive unique codes and actuate relays that control
the appliances.
The model 4891 and 4894 detectors are also used to activate
the special relays of the elevator controls and door openers by
magnifying the unique signal sent from the transmitter and
forwarding it to the receivers. The relay boxes, while
physically not unique to the disabled population (unlike the
transmitters), are stated to be designed for the function of the
product in which they are to be used. For example, different
appliances require different electrical designs, such as a lamp
control which may only need one relay, or an elevator control box
which may require sixteen relays.
The window opener, also claimed to be specially designed for
the physically disabled, incorporates an infrared receiver and
activates the opener when the signal is sent by the transmitter.
The model 2150 "GEWA intercom with infrared" is described as hall
telephone equipment consisting of a central unit, a room speaker
with infrared, a door speaker, a power supply, and one wall jack.
Recorded speech is used for communication with the visitor, and
it is controlled without wires by means of a transmitter. The
model 2158 "Intercom Room Speaker with infrared" contains a
receiver board for infrared control of the "speak" and "open"
functions. It can also be controlled by operating the push
buttons on the unit.
It is stated that all of the articles described above
operate as a system and are incapable of functioning alone, and
any use by the public would be more uncommon than use of public
devices by the disabled. In letters dated July 19, 1995, and
December 18, 1995, it is stated that the articles at issue are of
industrial grade, unlike consumer devices, and are substantially
more expensive. For example, an Infra-Link system costs
approximately $1,245.00, whereas a consumer device with infrared
control costs approximately $107.96. A newspaper article dated
May 25, 1993, is also submitted featuring the use of the elevator
controls installed at a rehabilitation center of the physically
handicapped, and it is stated that all Infra-Link products are
sold either directly to physically handicapped individuals, to
intervention facilities such as vocational rehabilitation
agencies, hospitals, and rehabilitation centers, or to retailers
who serve those markets.
ISSUE:
Whether the transmitters, receivers, relays, and intercoms
are "specially designed or adapted" for the handicapped within
the meaning of the Nairobi Protocol, and, therefore, eligible for
duty-free treatment under subheading 9817.00.96, HTSUS.
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, HTSUS. 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, HTSUS, 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."
Customs utilizes a principle known as the "probability of
general public use" in determining what constitutes "specially
designed or adapted" within the meaning of the Nairobi Protocol.
See also T.D. 92-77. This principle involves consideration of
various factors on a case-by-case basis. The first factor to be
considered is the physical properties of the article itself,
i.e., whether the article is easily distinguishable by properties
of the design and the corresponding use specific to its unique
design, from articles useful to non-handicapped individuals.
These "specific design" factors were considered in conjunction
with those factors discussed in Headquarters Ruling Letter (HRL)
074191 dated December 13, 1984. The factors discussed in HRL
074191 include:
(1) whether the article shows by design features that it is
specially adapted to particular needs of the chronically
handicapped; (2) whether the design of the article may
nearly equally suit the article for use by persons with
transient or acute disability; (3) whether any
characteristics are present that create a substantial
probability of use by the chronically handicapped (as
opposed to persons with transient or acute disabilities),
and (4) whether the article is easily distinguishable from
articles useful to the general public or whether use of the
article by the general public is so improbable that such use
would be fugitive.
The "probability of general public use" principle also includes
an evaluation of convenience. Additionally, HRL 556449 dated
May 5, 1992, considered: (1) whether articles are imported by
manufacturers or distributors recognized or proven to be involved
in this class or kind of articles for the handicapped; (2)
whether the articles are sold in specialty stores which serve
handicapped individuals; and (3) whether the condition of the
articles at the time of importation indicate that these articles
are for the handicapped.
In HRL 087625 dated November 1, 1990, Customs considered an
alarm clock/lamp featuring either an audible alarm or an audible
alarm together with a flashing light. An auxiliary jack was also
provided to connect the alarm clock/light to an optional
"bedshaker." It was held that the article was specially designed
for use by the hearing impaired because these additional features
are not normally found on a typical alarm clock, and the price
was much higher than a regular alarm clock. It was also found
that although the clock could be used by a person without a
hearing impairment, it was not designed with that person in mind.
In HRL 556139 dated November 21, 1991, Customs granted
subheading 9817.00.96, HTSUS, treatment to the importation of
devices (a transmitter, a receiver/headset, and a power supply)
which formed the "Audiolink" system, designed to assist the
hearing impaired to listen to the audio portion of television
programs or other types of audio/voice transmissions in various
places of public accommodation by transmitting television sound
and other audio/voice light waves via an infrared signal to a
receiver/headset. The receiver/headsets could either be worn by
the individual, or the receiver could be attached to a hearing
aid-related accessory. The receiver/headsets also contained an
adjustable tonal control to set the parameters to the frequencies
to compensate for the individual's particular hearing loss, an
adjustable balance control to direct more sound to the ear with a
greater hearing loss, and an unusually high volume level.
However, in HRL 558684 dated December 14, 1994, Customs
denied subheading 9817.00.96, HTSUS, treatment to a TV Listener
which transmits sound and other audio/voice light waves via an
infrared signal to a receiver/headset. As in HRL 556139, in
addition to receiving transmissions from the transmitter, the
receiver/headsets could function as a receiver to which a hearing
aid-related accessory could be attached with an adapter. The
receiver/headsets also included an adjustable balance control so
that more sound could be directed to the ear with greater hearing
loss, and they had an unusually high volume level. However,
unlike the Audiolink system, the TV Listener did not have an
adjustable tonal control, and while the importer of the Audiolink
was recognized as a distributor of articles for the hearing
impaired, the importer of the TV Listener marketed the product to
the general public, which was evidenced by a newspaper article.
In this case, the articles at issue are each stated to be a
part of the Infra-Link system. This is demonstrated by the use
of unique proprietary codes sent by the transmitter to the
receivers. The transmitters can be adapted according to the
degree of the user's handicap, by using a sip-or-puff switch or
by using the scanning feature. The transmitters also emit strong
signals so that they do not need to be aimed at the receiver.
The receivers and detectors also appear to be specially designed
for the handicapped because they are designed to be operated with
the transmitters which possess special features, or are used to
activate special relays such as elevator controls or window
openers for which the general public would have little use. The
intercoms also appear to be specially designed for the
handicapped because they are stated to be controlled by means of
a transmitter. While the articles could be used by the general
public in order to turn on lamps or TVS, the general public would
not need the special features which enable the articles to be
operated by a single switch or by scanning, and the special
features are not as efficient as the direct input of the channel
needed to activate the appliance. Furthermore, Infra-Link's
mission as a company is also only to market products to the
handicapped. Accordingly, it is our opinion that the articles
are specially designed or adapted for the handicapped, and
qualify for subheading 9817.00.96 HTSUS, treatment.
HOLDING:
Based on the information submitted, it is our opinion that
the articles at issue are specially designed or adapted for the
handicapped, and therefore, are eligible for duty-free treatment
under subheading 9817.00.96, HTSUS. Accordingly, this protest
should be granted in full.
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 attached to Customs Form 19,
Notice of Action, to 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 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, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division