OT-RR:CTF:VS H020515 GOB
U.S. Customs and Border Protection
Roy Armstrong
Assistant Area Port Director (Trade)
604 W. 4th Avenue
Room 230
Anchorage, AK 99501
RE: Heading 9817, HTSUS; Portable SenseView; Articles for the Handicapped
Dear Mr. Armstrong:
This is in response to your request for internal advice of October 16, 2007, which was forwarded to this office by the National Commodity Specialist Division, concerning GW Micro, Inc. (“GW Micro”), and the Portable SenseView.
FACTS:
The pertinent facts are as follows. The Portable SenseView is imported by GW Micro, which specializes in adaptive technology products. Its product line is directed at and driven by the needs of the visually impaired community. The Portable SenseView is the world’s smallest CCTV (closed circuit television). It has a 4.3 inch widescreen LCD display, weighs 7.8 ounces, and has dimensions of 5.75” x 3.27” x 0.89”. Its powerful magnification allows low vision consumers to use it. The Portable SenseView can digitally zoom in and out on an image with the press of a button from four times magnification to 28 times magnification. It offers four brightness levels and six different color modes. Print can be read in color, black and white, or four other choices. The Portable SenseView provides multiple viewing configurations with its two foldable legs. It has an external video output and sliding handle and is used with a rechargeable lithium battery.
A “marketing sheet” submitted by GW Micro indicates that the Portable SenseView may be used for reading a road map, a can of food while shopping in a grocery store, a menu at a restaurant, and a medicine bottle.
A review of the GW Micro website indicates that GW Micro sells numerous items for the visually impaired, including items involving Braille.
ISSUE:
Whether the Portable SenseView is eligible for classification under either subheading 9817.00.94 or subheading 9817.00.96, Harmonized Tariff Schedule of the United States (“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 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.
Subheading 9817.00.94, HTSUS, provides as follows: “Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons . . . : Articles for the blind: . . . special apparatus, machines, presses, and types for their use or benefit exclusively.”
Subheading 9817.00.96, HTSUS, provides as follows: “Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons . . . : Other.”
United States Note 4(a) to Subchapter XVII, Chapter 98, HTSUS, provides: “For purposes of subheadings 9817.00.92, 9817.00.94 and 9817.00.96, 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." [Emphasis in original.]
In HQ 560114, dated October 9, 1997, Customs and Border Protection (“CBP”) stated that it was satisfied that people with severe sight impairment suffer from a physical impairment within the meaning of Note 4(a). In considering a Xerox Outlook machine with a large television screen capable of displaying enlarged images of written and pictorial material that is transmitted by a video camera, CBP held that the machine was specially designed or adapted for the handicapped and eligible for treatment under subheading 9817.00.96, HTSUS.
HQ 560114 referred to HQ 556449, dated May 5, 1992, wherein CBP articulated the principle of "probability of general public use" used in determining whether an article is "specially designed or adapted" within the meaning of the Nairobi Protocol. The following factors were considered to be relevant in making this determination: (1) whether any characteristics are present that create a substantial probability of use by the chronically handicapped; (2) whether the article is easily distinguishable from articles useful to the general public; (3) whether use of the article by the general public is so improbable that such use would be fugitive; (4) whether use of the articles by the general public would be inconvenient; (5) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (6) whether the articles are sold in specialty stores which serve handicapped individuals; and (7) whether the condition of the articles at the time of importation indicate that these articles are for the handicapped. See also T.D. 92-77 (26 Cust. Bull. 1, August 26, 1992).
GW Micro states: “The Portable SenseView takes available technology and incorporates it into a device for the visually impaired person. It would be unreasonable for someone with non-impaired vision or someone who wears corrective eyeglasses or contacts to use this special apparatus.”
We note that GW Micro sells numerous articles for the visually impaired. Based upon the documentation of record, it does not appear likely that the Portable SenseView would be used by an individual who does not have a severe visual impairment. Therefore, we find that the Portable SenseView is an article for the use of those with a severe visual impairment. As indicated above, it is the CBP position that individuals with severe visual impairment suffer from a physical impairment within the meaning of Note 4(a). Accordingly, we find that the Portable SenseView is a good within the scope of the HTSUS language “[a]rticles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons.”
We determine that the Portable SenseView is classified in subheading 9817.00.96, HTSUS, as: “Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons
. . . : Other.” We choose this subheading over subheading 9817.00.94, HTSUS, because we believe that the record indicates that the Portable SenseView is suitable for use by certain individuals who have a severe visual impairment, but are not necessarily blind. Our result is consistent with that of
HQ 560114, where we held that the Outlook machine, designed for use by severely sight-impaired persons, was classified in subheading 9817.00.96, HTSUS.
HOLDING:
The Portable SenseView is classified in subheading 9817.00.96, HTSUS, as: “Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons . . . : Other.”
Please promptly provide a copy of this decision to the representative of GW Micro. Sixty days from the date of this ruling the office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Monika R. Brenner
Chief
Valuation & Special Programs Branch