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HQ 558910




March 3, 1995

CLA-2 CO:R:C:S 558910 MLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.00.96

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,


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