CLA-2 RR:CR:SM 562329 KSG
Port Director
U.S. Customs Service
555 Battery Street
San Francisco, California 94111
RE: Application for Further Review of Protest No. 2809-01-100643; Nairobi Protocol; subheading 9817.00.96; lenses; parts
Dear Director:
This is in reference to a Protest and Application for Further Review timely filed by International Freight Services, Inc. on behalf of Telesensory Corporation, contesting the denial of the duty free exemption set forth at subheading 9817.00.96, of the Harmonized Tariff Schedule of the United States (“HTSUS”), to CCTV zoom lenses.
FACTS:
This case involves 500 zoom lenses entered on July 24, 2000, and 750 lenses entered on August 21, 2000. The lenses were made in Japan. The entry was liquidated on June 8, 2001, under subheading 9002.11.6000, HTSUS. The protestant argues that the articles should be classified in subheading 9817.00.96, HTSUS.
The imported lenses are assembled into video magnifiers, which are marketed and sold to people with low vision to assist them in reading and writing. Telesensory states in its materials that the video magnifiers are sold to visually impaired people who are at the point where eyeglasses are not sufficient to enable them to meet a large portion of their visual needs. Many are seniors whose eyesight has begun to diminish due to macular degeneration. Video magnifiers are devices utilizing closed circuit television technology to enlarge written materials and small objects. Telesensory states in its materials that its products are targeted to visually impaired and blind people and lists the adaptive devices that it has produced.
ISSUE:
Whether the imported lenses are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
LAW AND ANALYSIS:
The Nairobi Protocol to the Florence Agreement on the Importation of Educational, Scientific, and Cultural Materials Act of 1982 expanded the scope of the Florence Agreement primarily by expanding duty-free treatment for certain articles for the use or benefit of the handicapped in addition to providing duty-free treatment for articles for the blind. Section 1121 of the Omnibus Trade and Competitiveness Act of 1988 and Presidential Proclamation 5978 provided for the implementation of the Nairobi Protocol by inserting subheadings 9817.00.92, 9817.00.94, and 9817.00.96 into the HTSUS. These tariff provisions specifically state that “articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for uses in the foregoing articles” are eligible for duty-free treatment.
U.S. Note 4(a), 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 has previously held in Headquarters Ruling Letter 560114, dated October 9, 1997, that individuals who are severely sight-impaired are encompassed by this Note.
U.S. Note 4(b), chapter 98, HTSUS, states that 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.
The issue in the instant case is whether the lenses are “specially designed or adapted” for use in articles that are specially designed or adapted for the use or benefit of handicapped persons, which is required by the superior text in subheading 9817.00.96, HTSUS. The meaning of the phrase “specially designed or adapted” with regard to imported articles has been decided on a case-by-case basis. In HRL 556449, dated May 5, 1992, Customs set forth factors it would consider in making this case-by-case determination. The same factors are relevant in determining whether a part is "specially designed or adapted" for an article for the use or benefit of handicapped persons. These factors include: 1) the physical properties of the article itself, i.e., whether the article is easily distinguishable, by properties of the design, form, and the corresponding use specific to this unique design, from articles useful to non-handicapped persons; 2) whether any characteristics are present that create a substantial probability of use by the chronically handicapped so that the article is easily distinguishable from articles useful to the general public and any use thereof by the general public is so improbable that it would be fugitive; 3) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; 4) whether the articles are sold in specialty stores which serve handicapped individuals; and 5) whether the condition of the articles at the time of importation indicates that these articles are for the handicapped.
Customs ruled in HRL 556449, dated May 5, 1992, that duty-free treatment under subheading 9817.00.96, HTSUS, was precluded for a two-handed mug, which was designed with a low center of gravity and a corresponding top to help reduce spillage, since this article was commonly used by children and the design was common in traveling mugs used by the general public. In HRL 558684, dated December 14, 1994, Customs held that a cordless TV headset system was not eligible for classification in subheading 9817.00.96, HTSUS, because it was marketed to the general public, not sold in a specialty store and the volume was not adjusted for the specific hearing aid of a handicapped person.
In HRL 560114, dated October 9, 1997, Customs held that a reading assistance machine that magnifies an image from 5 to 25 times was specially designed and adapted for the use or benefit of handicapped persons. The machine displayed magnified written and pictorial material on a large television screen transmitted by a video camera. Customs concluded that while the machine "may be used to magnify images for non-handicapped persons, Customs believes such a use would be an atypical use" due to its special design features, which included its capacity to magnify images, yellow oversize control knobs, and the product's dark color used to minimize glare and maximize contrast.
The video magnifiers (that the lenses are incorporated into) appear to be very similar to the reading assistance machine involved in HRL 560114. However, the product involved in this case is the lenses. The protestant argues that the lenses are parts to articles which benefit the handicapped person and therefore, are eligible for classification in subheading 9817.00.96, HTSUS. However, no evidence has been presented that the lenses are specially designed or adapted for the video monitors. Absent a showing by the protestant that the lenses are specially designed in some way for the video monitors and that they are not lenses that are suitable for many general uses, we are unable to conclude that these lenses are eligible for classification in subheading 9817.00.96, HTSUS. Based on the above, we find that the protestant has not shown that the lenses are specially designed or adapted for use in the video monitors as required in subheading 9817.00.96, HTSUS. Accordingly, the lenses are not eligible for duty free treatment under subheading 9817.00.96, HTSUS.
HOLDING:
The imported lenses are not eligible for duty-free treatment under subheading 9817.00.96, HTSUS. Accordingly, you should deny this protest.
In accordance with Section 3a(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, this decision should be attached to Customs Form 19, Notice of Action, and 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 this decision. Sixty days from the date of this 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 to the public via the Diskette Subscription Service, the Freedom of Information Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division