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HQ 558684




December 14, 1994

CLA-2 CO:R:C:S 558684 DEC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.00.96

Area Director of Customs
New York Seaport Area
6 World Trade Center - Room 432
New York, New York 10048

RE: Application for Further Review and Protest No. 1001-4-102908, contesting denial of duty-free treatment of the "TV Listener" as articles for the handicapped under the Nairobi Protocol; T.D. 92-77; HRL 556139; HRL 950772

Dear Sir:

The above-referenced protest, timely filed by Galvin & Mlawski, on behalf of UNISAR, Incorporated, protests the assessment of duties by your office on the TV Listener Infrared Cordless TV Headset System (TV Listener) units under heading 8518, Harmonized Tariff Schedules of the United States (HTSUS). The merchandise at issue was imported on June 23, 1993.

FACTS:

The TV Listener is imported by UNISAR, Incorporated. The devices allow sound and other audio/voice light waves to be recognized and transmitted via an infrared signal to a receiver/headset. The transmitter is powered by a standard electric current and the headsets/receivers are battery-powered. The transmitter, receiver/headset, and the unit's power supply are imported together.

The importer/protestant claims that these units are designed to enable hard-of-hearing individuals to compensate for their level of hearing loss. In addition to receiving transmissions from the transmitter, the receiver/headsets can function as a receiver to which a hearing aid-related accessory can be attached with an adapter. The receiver/headsets include an adjustable balance control so that more sound can be directed to the ear with greater hearing loss, and an unusually high volume level.

ISSUE:

Whether the TV Listener is eligible for duty-free treatment pursuant to the Nairobi Protocol.

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.

United States Note 4(a), subchapter XVII, Chapter 98, HTSUS, ("Note 4(a)"), provides 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."

In Headquarters Ruling Letter (HRL) 556139, dated November 3, 1991, Customs determined that the "Audiolink", a device that permits television sound and other audio/voice light waves to be recognized and transmitted via an infrared signal to a receiver/headset, was properly classified under subheading 9817.00.96. The TV Listener performs the same function, allowing the hearing impaired increased access to television and other types of audio/voice transmissions in various places of public accommodation, such as movie theaters and auditoriums.

Unlike the Audiolink that was the subject of HRL 556139, the TV Listener does not have an adjustable tonal control to allow an individual or an audiologist to set the parameters to the frequencies to compensate for the individual's specific hearing loss. Another distinction between HRL 556139 and the instant case is that the importer of the Audiolink is recognized as a distributor of articles for the hearing impaired while the importer of the TV Listener markets the product to the general public and not just to the hearing impaired. For example, in the Orlando Sentinel Tribune, the following article, entitled "What's New", introduces two new listening devices produced by UNISAR:

The first is the "TV Listener Infrared Cordless TV Headset System," which allows you to watch and listen to the bedroom TV while your lovely or handsome spouse sleeps or, dare we say reads. The TV
Listener is made by UNISAR, Inc. and is available at Brookstone and
Sharper Image . . . UNISAR's other headset device has a very different purpose. It lets pregnant moms hear what's going on inside their tummies. Moms can listen with a headset, record the sounds if desired, and with the deluxe model, amplify the sounds so a whole crowd can listen in. Harry Wessel, What's New, Orlando Sentinel Trib.,
Apr. 19, 1993, at D2.

We note that there is no mention in the article of any special design attributes the TV Listener may have to aid the hearing impaired.

In HRL 950772, dated March 3, 1992, Customs determined that the "Tel-Ease" telephone which was designed with jumbo size buttons, a flashing light, an automatic redial button, and an ability to increase the incoming and ringer volume was denied eligibility for duty-free entry under the Nairobi Protocol. In denying the protest, Customs stated that:

The legislative history of subheading 9817.00.96, HTSUS, discusses the concern of Congress that the design, modification or adaption of an article must be significant, so as to clearly render the article for use by handicapped persons. (Senate Report (Finance Committee) No.
97-564, Sept. 21, 1989). It is our position that the degree of additional features for the benefit of the handicapped in the phone under consideration is minimal and is, therefore, insufficiently significant to alter the basic character of a conventional phone. For example, while the large numbers on the dial buttons would certainly help anyone, visually impaired or not, they intrinsically constitute an attractive design feature that would appeal to many people who are not visually impaired.
The telephones are also not marketed and sold just to the hearing and sight impaired but are available to the general public. Tone and volume control, speed dial, flashing light, and number memory, are all features that are increasingly found in standard telephones sold to the general public.

Thus, while the "Tel-Ease" telephone may be of benefit to the sight and hearing impaired, we do not believe it is the type of equipment which can be said to be specially designed or adapted for handicapped people. Therefore, the "Tel-Ease" telephones, are classified in subheading
8517.10.70, HTSUS, and are not eligible for duty free treatment in subheading 9817.00.96, HTSUS.

For the TV Listener to be eligible for duty-free treatment, it must be determined that it is "specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped." The only adaptation that the TV Listener possesses that is of special benefit to the hearing impaired is the available jack adapter for a hearing aid that is added for a nominal cost. The other attributes of the TV Listener which include an adjustable balance control and unusually high volume control are not unique adaptations for headphones. These particular products are not marketed exclusively to the hearing impaired. Individuals who wish to watch television or listen to music without disturbing others would also be drawn to the wireless feature of the product. Even though the article may be used by the hearing impaired, the TV Listener does not satisfy the requirement that it be specially designed for their benefit. The TV Listener, therefore, is ineligible for duty-free treatment under subheading 9817.00.96.

HOLDING:

The TV Listener is not specially designed or adapted for the handicapped. Therefore, it is ineligible for duty-free treatment under subheading 9817.00.96, HTSUS. Therefore, the protest should be denied.

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 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 the 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, LEXIS, Freedom of Information Act and other public access channels.

Sincerely,

John Durant
Director, Commercial Rulings Division

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