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HQ 559439




January 3, 1996

CLA-2 RR:TC:SM 559439 MLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.00.96

Port Director
U.S. Customs Service
511 N.W. Broadway
Portland, OR 97209

RE: Application for Further Review of Protest No. 2904-95-100188; Denial of duty exemption under HTSUS subheading 9817.00.96 to infra-red transmitters and receivers; Nairobi Protocol; specially designed or adapted for the handicapped

Dear Sir:

The above-referenced Application for Further Review timely filed by Infra-Link, Inc., contests the denial of the duty exemption of subheading 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS), to infrared transmitters and receivers.

FACTS:

The articles at issue are part of the Infra-Link system, a product line of remote control devices (transmitters, receivers, relays, and intercoms) that use infrared transmission and reception. These devices control the operation of electrical appliances that normally are accessed by manual switching. Customs in Portland, Oregon, classified the transmitter, receiver and relays under subheading 8537.10.90, HTSUS, and the intercoms under subheading 8517.81.00, HTSUS.

In a letter dated June 8, 1995, to the District Director, Portland, Oregon, and in a letter dated December 1, 1995, the President of Infra-Link states that these articles are solely sold and designed specifically for the physically disabled and are not used for any other purpose, and that the company was created for the sole purpose of marketing products to the physically disabled. In a letter dated June 15, 1995, it is stated that GEWA, the manufacturer of the articles at issue, was created for the sole purpose of serving the disabled.

Two systems are specifically described. The literature describing a "First Aide Kit" states that an infrared transmitter can control the telephone, TV, radio, VCR, lamps, alarms, electric-bed functions, window openers, door openers, and powered draperies. The brochure states that the transmitter and control switches can be individually adapted to the user's need. For example, the transmitter and sip-or-puff switch are attached to a specially designed wheeled-base stand used to hold Infra-Link transmitters and receivers, and the transmitter can be used by direct touch of the keyboard or simple row/column scanning with any single switch. The brochure also states that unlike common household infrared transmitters, these transmitters emit a very strong signal making it unnecessary to "aim" at the target receivers. The GEWA and Infra-Link product lines include components for attaching the equipment to wheelchairs and beds.

The literature describing "Elevator Control" states that the "wireless remote control system uses infrared signals to enable physically disabled individuals to access the elevator, open the door, select the floor level, and use the emergency call button." The receiver is placed above the elevator door and when the receiver is activated by a transmitter, the elevator is called and the automatic sliding doors of the elevator are opened. The brochure also depicts a person in a wheelchair using the article. Another brochure describes the GEWA "Smart House," the "smart living environment for those with special needs- the GEWALINK remote operating system."

In letters dated November 22, 1995, and December 1 and 12, 1995, the special attributes of the various articles are described. The model 4257 programmable transmitter is operated by an external switch, such as a switch operated by a sip and puff, that sends a unique infrared signal to various receivers when activated. The unique scanning also enables the disabled to select from 64 unique channels. When the special switch is activated, each channel is scanned by a series of LED lights. When the light reaches the appropriate channel, the disabled person activates the switch and, in turn, the special infrared signal is sent to the appropriate receiver. The model 4255, 4229, and 4280 transmitters are designed for those disabled individuals who require less function and who may require the use of special mouth sticks without programmable memory. Each of these transmitters can also be operated with a single switch attachment if required. This single switch can be either a sip and puff used by quadriplegics or other specially modified switches operated by persons with other types of disabilities. It is stated that the range of infrared transmitter is selected based on the ability of the user, and unlike common TV remote control transmitters, the Infra-Link units are powerful enough to operate devices without having to accurately aim them at the receiving unit. The transmission codes are also stated to be proprietary and are not based on consumer devices, and it is stated that consumer devices cannot operate elevators or hospital beds, but rather are typically designed only to operate electrical appliances via relays that control electrical outlets. The GEWA model 4257 transmitter is capable of being operated by a standard IBM compatible computer.

The model 4215, 4210, and telephone receivers are stated to be designed to communicate with the remote infrared transmitter, and they are wired to the electrical device which is to be operated. Another receiver, a special switch, is stated to be designed to enable the most severely disabled to turn the lights on or off. Certain receivers activate elevator controls, and when installed in parallel, the elevator may be called, a floor level may be selected, and the emergency call button may be used. In essence, it is stated that the receivers are specifically designed to receive unique codes and actuate relays that control the appliances.

The model 4891 and 4894 detectors are also used to activate the special relays of the elevator controls and door openers by magnifying the unique signal sent from the transmitter and forwarding it to the receivers. The relay boxes, while physically not unique to the disabled population (unlike the transmitters), are stated to be designed for the function of the product in which they are to be used. For example, different appliances require different electrical designs, such as a lamp control which may only need one relay, or an elevator control box which may require sixteen relays.

The window opener, also claimed to be specially designed for the physically disabled, incorporates an infrared receiver and activates the opener when the signal is sent by the transmitter. The model 2150 "GEWA intercom with infrared" is described as hall telephone equipment consisting of a central unit, a room speaker with infrared, a door speaker, a power supply, and one wall jack. Recorded speech is used for communication with the visitor, and it is controlled without wires by means of a transmitter. The model 2158 "Intercom Room Speaker with infrared" contains a receiver board for infrared control of the "speak" and "open" functions. It can also be controlled by operating the push buttons on the unit.

It is stated that all of the articles described above operate as a system and are incapable of functioning alone, and any use by the public would be more uncommon than use of public devices by the disabled. In letters dated July 19, 1995, and December 18, 1995, it is stated that the articles at issue are of industrial grade, unlike consumer devices, and are substantially more expensive. For example, an Infra-Link system costs approximately $1,245.00, whereas a consumer device with infrared control costs approximately $107.96. A newspaper article dated May 25, 1993, is also submitted featuring the use of the elevator controls installed at a rehabilitation center of the physically handicapped, and it is stated that all Infra-Link products are sold either directly to physically handicapped individuals, to intervention facilities such as vocational rehabilitation agencies, hospitals, and rehabilitation centers, or to retailers who serve those markets.

ISSUE:

Whether the transmitters, receivers, relays, and intercoms are "specially designed or adapted" for the handicapped 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. The first factor to be considered is the physical properties of the article itself, i.e., whether the article is easily distinguishable by properties of the design and the corresponding use specific to its unique design, from articles useful to non-handicapped individuals. These "specific design" factors were considered in conjunction with those factors discussed in Headquarters Ruling Letter (HRL) 074191 dated December 13, 1984. The factors discussed in HRL 074191 include:

(1) whether the article shows by design features that it is specially adapted to particular needs of the chronically handicapped; (2) whether the design of the article may nearly equally suit the article for use by persons with transient or acute disability; (3) whether any characteristics are present that create a substantial probability of use by the chronically handicapped (as opposed to persons with transient or acute disabilities), and (4) whether the article is easily distinguishable from articles useful to the general public or whether use of the article by the general public is so improbable that such use would be fugitive.

The "probability of general public use" principle also includes an evaluation of convenience. Additionally, HRL 556449 dated May 5, 1992, considered: (1) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (2) whether the articles are sold in specialty stores which serve handicapped individuals; and (3) whether the condition of the articles at the time of importation indicate that these articles are for the handicapped.

In HRL 087625 dated November 1, 1990, Customs considered an alarm clock/lamp featuring either an audible alarm or an audible alarm together with a flashing light. An auxiliary jack was also provided to connect the alarm clock/light to an optional "bedshaker." It was held that the article was specially designed for use by the hearing impaired because these additional features are not normally found on a typical alarm clock, and the price was much higher than a regular alarm clock. It was also found that although the clock could be used by a person without a hearing impairment, it was not designed with that person in mind.

In HRL 556139 dated November 21, 1991, Customs granted subheading 9817.00.96, HTSUS, treatment to the importation of devices (a transmitter, a receiver/headset, and a power supply) which formed the "Audiolink" system, designed to assist the hearing impaired to listen to the audio portion of television programs or other types of audio/voice transmissions in various places of public accommodation by transmitting television sound and other audio/voice light waves via an infrared signal to a receiver/headset. The receiver/headsets could either be worn by the individual, or the receiver could be attached to a hearing aid-related accessory. The receiver/headsets also contained an adjustable tonal control to set the parameters to the frequencies to compensate for the individual's particular hearing loss, an adjustable balance control to direct more sound to the ear with a greater hearing loss, and an unusually high volume level.

However, in HRL 558684 dated December 14, 1994, Customs denied subheading 9817.00.96, HTSUS, treatment to a TV Listener which transmits sound and other audio/voice light waves via an infrared signal to a receiver/headset. As in HRL 556139, in addition to receiving transmissions from the transmitter, the receiver/headsets could function as a receiver to which a hearing aid-related accessory could be attached with an adapter. The receiver/headsets also included an adjustable balance control so that more sound could be directed to the ear with greater hearing loss, and they had an unusually high volume level. However, unlike the Audiolink system, the TV Listener did not have an adjustable tonal control, and while the importer of the Audiolink was recognized as a distributor of articles for the hearing impaired, the importer of the TV Listener marketed the product to the general public, which was evidenced by a newspaper article.

In this case, the articles at issue are each stated to be a part of the Infra-Link system. This is demonstrated by the use of unique proprietary codes sent by the transmitter to the receivers. The transmitters can be adapted according to the degree of the user's handicap, by using a sip-or-puff switch or by using the scanning feature. The transmitters also emit strong signals so that they do not need to be aimed at the receiver. The receivers and detectors also appear to be specially designed for the handicapped because they are designed to be operated with the transmitters which possess special features, or are used to activate special relays such as elevator controls or window openers for which the general public would have little use. The intercoms also appear to be specially designed for the handicapped because they are stated to be controlled by means of a transmitter. While the articles could be used by the general public in order to turn on lamps or TVS, the general public would not need the special features which enable the articles to be operated by a single switch or by scanning, and the special features are not as efficient as the direct input of the channel needed to activate the appliance. Furthermore, Infra-Link's mission as a company is also only to market products to the handicapped. Accordingly, it is our opinion that the articles are specially designed or adapted for the handicapped, and qualify for subheading 9817.00.96 HTSUS, treatment.

HOLDING:

Based on the information submitted, it is our opinion that the articles at issue are specially designed or adapted for the handicapped, and therefore, are eligible for duty-free treatment under subheading 9817.00.96, HTSUS. Accordingly, this protest should be granted in full.

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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