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HQ 221541


July 26, 1989

ENT-6-01-CO:R:C:E 221541 TG

CATEGORY: ENTRY LIQUIDATION

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.

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
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
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

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