CLA-2 CO:R:C:S 558910 MLR
Area Director
U.S. Customs Service
J.F.K. Airport, Bldg. 77
Jamaica, New York 11430
RE: Application for Further Review of Protest No. 1001-94-102338; Denial of duty exemption under HTSUS subheading
9817.00.96 to Franklins Language Master Special Edition;
electronic dictionary; Nairobi Protocol; specially designed
or adapted for the handicapped
Dear Sir:
The above-referenced Application for Further Review timely
filed by Franklin Electronic Publishers, Inc. ("Franklin"),
contests the denial of the duty exemption of subheading
9817.00.96, Harmonized Tariff Schedule of the United States
(HTSUS), to Franklins Language Master Special Edition. A
brochure describing the article is submitted.
FACTS:
The article at issue is Franklins Language Master Special
Edition, an electronic dictionary allegedly for the blind,
visually impaired, learning disabled, or speech impaired. The
brochure states that the unit is a fully speaking reference
device which has a spelling corrector, dictionary, thesaurus,
grammar guide, and 10 educational games. The front of the
brochure states: "The Language Master Special Edition ... making
language more accessible for people who are blind, visually
impaired, learning disabled, or speech impaired," and the inside
of the brochure has pictures of such people using the unit.
The unit features a typewriter-style keyboard with high-contrast lettering and raised locator dots on the F, J, ID, and
BACK keys for orientation (the ID key lets keys speak their names
without executing their functions for easy keyboard exploration);
tactile markings on the battery cover; dedicated function keys
for most tasks; a large screen with 1/4 inch display characters;
headphones; an AC adapter; and special instructional materials
(i.e., an instruction tape). The unit can also speak every
letter, word, phrase, definition, synonym, help message, menu,
and game at various volumes and speeds. Every key can also speak
its letter or function. For instance, the unit says "ready" at
the ready screen, "need a word" at prompts, and "good-bye" when
it shuts off. The brochure also states that the unit gives the
power of augmentative communication, with a personal word list
and a text-to-message list. The speaking menus, keyboard echo,
or inflections in definitions can also be turned off.
Franklin states that numerous institutions for the blind,
such as the American Foundation for the Blind, contributed to the
development of the unit.
The record also contains commercial invoices for the
language master model LM-6000SE at issue here, a language master
model LM-4000A, a language master model LM-2200BX, a Spanish
master model, a Holy Bible King James version model, a speaking
ace model, and an electronic spelling corrector model. Only the
language master model LM-6000SE is claimed to be eligible for
duty-free treatment under subheading 9817.00.96, HTSUS.
ISSUE:
Whether the Franklins Language Master Special Edition is
"specially designed or adapted" for the blind 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.
Customs has considered numerous articles that were claimed
to be specially designed for the blind or hearing impaired. In
Headquarters Ruling Letter (HRL) 952347 dated October 27, 1992,
Customs reconsidered New York Ruling Letter (NYRL) 875450 dated
June 18, 1992, and determined that a talking calculator was not
eligible for duty free treatment under subheading 9817.00.96,
HTSUS. Although the calculators were equipped with features,
such as large numbers, these were features routinely found in
calculators intended for use by the general public. The
calculators also had a LCD digital read-out which was of no use
to a blind person. Finally, neither the packaging nor the
accompanying instructions suggested that the calculators were
specially designed or adapted for the blind. See also HRL 951433
dated May 29, 1992, (a talking alarm clock which audibly
announced the hours and minutes when a lever was depressed, was
programmable to announce the time every hour, and had a large LED
time read-out was not eligible for subheading 9817.00.94, HTSUS,
treatment, because Customs found that the clock's features were
as useful to the general public as they were to the visually
impaired); HRL 950772 dated March 3, 1992 ("tel-ease" telephones
each featuring jumbo sized buttons with large numbers and
letters, an amplified receiver and loud electronic ringer, a
flashing light, an automatic redial button, a ten number memory,
and colored emergency designators, and eventually sold to hearing
audiologists, were determined to be of benefit to the sight and
hearing impaired but were not the type of equipment specially
designed or adapted for handicapped people, since the features
were insufficiently significant to alter the basic character of a
conventional phone); and HRL 952169 dated October 13, 1992
(talking watches which audibly announced the time of day, the
hour, and the minutes, and the hour and minutes when setting the
time and alarm, and sold to various institutions for the blind
but did not come with any special packaging or instructions were
not considered types of articles specially designed for the
handicapped or exclusively for the use or benefit of the blind
because they were also equipped with features routinely found in
watches intended for use by the general public, such as a LCD
digital read-out with normal sized numbers).
On the other hand, Customs determined in HRL 088503, dated
May 3, 1991, that a speech synthesizer was properly classified
under subheading 9817.00.96, HTSUS. That machine converted data
that was typed on a keyboard into a synthesized voice which
enabled a deaf user to communicate. Similarly, in HRL 557948
dated September 30, 1994, a "Reading Edge" which scanned data and
processed it through its character recognition software to
produce a synthetic voice to allow the blind or visually impaired
to enjoy written materials without the assistance of others, was
determined to be eligible for subheading 9817.00.96, HTSUS,
treatment.
Customs has also allowed certain tape players to be eligible
for subheading 9817.0094, HTSUS, treatment. See HRL 952398 dated
December 30, 1992, (a "Telex TBC" talking book cassette player
with color coded, over-sized, and molded keys; variable speed,
tone, and volume control; and sold exclusively to the Library of
Congress was eligible); and HRL 221541 dated July 26, 1989,
(cassette players to be purchased by the Federation of the Blind,
without record facilities, but possessing tactile switches for
the blind, and for use with special four track cassettes which
the National Listening Library in the United Kingdom and the
Library of Congress provided free of charge, were eligible;
however, they would not be eligible if they were marketed for
profit).
Based on these rulings it is our opinion that the Franklins
Language Master Special Edition is specially designed or adapted
for the blind and handicapped. As in HRL 088503 concerning the
speech synthesizer, and HRL 557948 concerning the "Reading Edge",
this article spells words out loud and reads the screen so that a
blind person may use this article as a substitute for a braille
dictionary, thesaurus, etc. Furthermore, although each key is
not specially marked in braille, the locators dots on the F, J,
ID, and BACK keys allow a blind person to orientate their fingers
on the keyboard. The ID key also lets a blind person hear the
keys without performing their functions. In addition, the
tactile marks on the battery cover are only useful for a blind or
visually impaired person.
Although the article speaks as the talking calculator in HRL
952347, and also has a LCD digital read-out which was a
determining factor that disqualified the talking calculator from
duty-free treatment, the article at issue comes with an
instructional tape while the talking calculator did not come with
special instructions useful for the blind. In addition, the
talking calculator did not possess locator dots useful for a
blind person.
The article could be used by the general public, but most
likely a model without speech capability would be used. Although
the speech capability feature could be useful for children,
viewing the sample, it does not appear to be an article
necessarily marketed to this market. Accordingly, it is our
opinion that the Franklins Language Master Special Edition is
eligible for duty-free treatment under subheading 9817.00.96,
HTSUS.
HOLDING:
Based on the information submitted, it is our opinion that
the Franklins Language Master Special Edition is an article
specially designed or adapted for the blind, and therefore,
eligible for duty-free treatment under subheading 9817.00.96,
HTSUS. Accordingly, this protest should be granted.
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
Commercial Rulings Division