ENT-6-01-CO:R:C:E 221541 TG
TARIFF NO: 9817.00.94
Ron Hannah
Clarke & Smith MFG Co LTD
Melbourne House
Melbourne Road
Wallington, Surrey
SM6 8SD
United Kingdom
RE: Request for Ruling Under the Nairobi Protocol and Subheading
9807.00.30 of the Harmonized Tariff Schedule
Dear Mr. Hannah:
This is in reference to your letter of June 19, 1989
requesting a ruling on whether your product qualifies under the
Nairobi Protocol and subheading 9807.00.30 of the Harmonized
Tariff Schedule (HTS).
FACTS:
According to your letter, Clarke & Smith Manufacturing
Company Limited has been manufacturing a range of products for
the blind, the partially sighted and the physically handicapped
for a number of years. It has established a sound market in both
the United Kingdom and in Scandanavian countries. In particular,
Clarke & Smith manufactures a cassette player for the blind and
handicapped.
You state that you recently visited Baltimore and that the
Federation of the Blind has expressed an interest in these
cassette players. You also state that you have established
contact with a local company registered as 'Aids Unlimited' who
has agreed to market the cassette players in the U.S. on your
behalf.
ISSUE:
Whether the cassette players qualify under the Nairobi
Protocol of the Trade Bill and subheading 9807.00.30, HTS.
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LAW AND ANALYSIS:
The Agreement on the Importation of Educational, Scientific
and Cultural Materials (17 UST 1835; TIAS 6129; 131 UNTS 25),
known as the Florence Agreement, is an international agreement
providing for the duty-free trade among its 90 adherents in
specified categories of articles. These categories are: (1)
books, publications, and documents; (2) works of art and
collector's pieces; (3) visual and auditory materials; (4)
specific instruments and apparatus; and (5) articles for the
blind. It was signed by the United States on November 2, 1966.
The scope of the Florence Agreement was broadened by the
Nairobi Protocol which opened for signature at the United Nations
on March 1, 1977. This subsidiary agreement removed some of the
restrictions on articles otherwise entitled to duty-free status,
and expanded the Florence Agreement to embrace technologically
new articles and previously uncovered works of art, films, etc.
It includes: "All materials specifically designed for the
education, employment, and social advancement of physically or
mentally handicapped persons...."
Subheading 9807.00.30 HTS, provides duty-free rates for
articles for the blind including braille, tablets, cubarithms and
special apparatus, machines, presses and types for their use or
benefit exclusively. In Presidential Proclamation 5978 of May
12, 1989, the Nairobi Protocol was implemented in terms of the
Harmonized Tariff Schedule and subheading 9807.00.30 was changed
to 9817.00.94.
I
There have been several rulings dealing with articles for
the blind which are applicable to this case. In Customs Ruling
CLA-2:R:CV:MSP 053241 KW (March 3, 1978), General Electric wanted
to import a cassette tape recorder/player designed for the use of
blind persons, which would be imported into the United States
from Japan for the exclusive use of blind persons. The article
manifested special features not found in most other cassette
recorders/players. The American Printing House for the Blind
would purchase these recorder/player machines from General
Electric and then sell them on a non-profit basis only to persons
who were certified to be blind. The product had been developed
by General Electic in conjunction with the American Printing
House for the Blind.
This office found that "Inasmuch as this equipment is
available only to those who have been certified by a physician as
unable to read regular printed material based on the criteria
elucidated above and they are sold on a non-profit basis to
certified users only, they are properly classifiable under the
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provision for special apparatus, machines, presses, and types for
the use or benefit of blind persons in item 826.20, TSUS, [now
subheading 9817.00.94 HTS] and free of duty."
In another example, Customs Ruling CLA-2:R:CV:MSP 049543 SC
(March 3, 1978) involved chess sets produced in France for the
blind. This office held that "If the chess set was specifically
engineered and constructed for the blind and would be sold to and
used by the blind exclusively and for their benefit, such
merchandise may be accorded free entry under item 826.20, TSUS."
In the instant case, you state that your cassette players
are designed for the exclusive use of the blind as they are
without record facilities, but with tactile switches specifically
for the blind. Moreover, these cassette players are used as
simple reading machines for special four track cassettes provided
free of charge by the National Listening Library in the United
Kingdom and by the Library of Congress. We agree that this
product qualifies under subheading 9817.00.94 as an article for
the blind under "Braille, tablets, cubarithms and special
apparatus, machines, presses and types for their use or benefit
exclusively."
II
However, you will not qualify under the Nairobi Protocol if
'Aids Unlimited' markets the product on your behalf for profit.
In U.S. Note 1(ii)(A) and (B) of subchapter 17, no article shall
be exempt from duty under subheading 9817.00.94 unless such
article is imported by, or certified by the importer to be for
the use of, any public or private institution or association
approved as educational, scientific, or cultural by a Federal
Agency or agencies designated by the President for the purpose of
duty-free admission pursuant to the Nairobi Protocol.
Moreover, we direct your attention to the requirements of 19
U.S.C. 1484. Only the importer of record has the right to make
entry. "Importer of Record" is defined as the owner or purchaser
of the goods, or when designated by the owner, purchaser, or
consigner, a licensed customhouse broker.
In Customs Ruling CLA-2:R:CV:MC 053952 EA (Dec. 5, 1977),
this office found that "the importation of articles by a
commercial firm to be inventoried for later sale to a nonprofit
institution is not an importation for the use of a nonprofit
institution. In order for a product to be entitled to duty free
treatment a commercial firm must have a bona fide order for the
articles prior to importation."
Likewise, in Customs Ruling ENT-1-01:R:E:E 305609 M (March
2, 1978), International Microfilm was a dealer in foreign
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microfilms, selling to university and public libraries. It was
found that it qualified as an agent under the regulations as it
would always have an order in hand from its client before
placing an order with the foreign supplier. Furthermore, Customs
stated, "Since your company would be importing microfilms on
behalf of qualified institutions, you must submit such
documentation, such as a copy of the purchase order with each
entry, which would indicate that you are importing this
merchandise for the use of a particular qualified institution."
Therefore, based on these cases and U.S. Note 1(ii)(A) and
(B), you must have a preorder from the Federation of
the Blind in Baltimore (or another qualified institution) before
you can qualify for free entry under the Nairobi Protocol.
Moreover, `Aids Unlimited` must meet the requirements of 19
U.S.C. 1484 in order to import these articles under subheading
9817.00.94, HTS, and it may not market this product on your
behalf for a profit if you wish to bring it in under 9817.00.94
HTS.
HOLDING
The cassette players qualify under the Nairobi Protocol
and may be brought in under subheading 9817.00.94, HTS, provided
you have a preorder from a qualified institution. 'Aids
Unlimited' must meet the requirements of 19 U.S.C. 1484 in order
to import these cassette players on your behalf under subheading
9817.00.94, HTS.
Sincerely,
John Durant, Director
Commercial Rulings Division