The tariff classification of children’s puzzles and instructional activities for the blind or visually impaired from China

N311477 May 26, 2020 CLA-2-87:OT:RR:NC:N2:424 CATEGORY: Classification TARIFF NO.: 9503.00.0073; 9817.00.96 Alejandro Franco American Printing House for the Blind 1839 Frankfort Avenue Louisville, KY 40206 RE: The tariff classification of children’s puzzles and instructional activities for the blind or visually impaired from China Dear Mr. Franco: In your letter submitted April 28, 2020, you requested a tariff classification ruling. The item under consideration has been identified as the American Printing House for the Blind’s (APH) “Reach and Match Learning Kit.” APH’s Reach & Match Learning Kit is a collection of 4 interlocking sensory foam play mats, which students can use to create different 2D and 3D configurations, and 26 braille/tactile puzzle tiles. One side of each mat has a different tactile pattern in a bright contrasting color that matches the texture of one side of the corresponding tiles. The other side of the mats when assembled has a recessed path and has cutout holes that match the shapes of the puzzle tiles (red circles, blue triangles, green squares, and yellow pentagons). The 26 tiles feature the English alphabet, raised braille letters and a braille direction line on the other side, and different rattling sounds inside the tiles. Through understanding of braille/tactile and other sensory elements, the child fits the tiles into the die cut holes in the mats. Reach & Match is specially designed for children who are blind or visually impaired to train for manual dexterity, identifying tactile patterns, and early braille literacy. Using research-based instructional activities, this product creates an opportunity for the students to train for motor development, direction, spatial awareness, and communication and social skills. The inclusive design supported by sound and other sensory elements helps children with additional hearing or physical/intellectual impairments learn and engage with their peers. It also provides opportunities for group and individual play during which children can explore, play games, problem solve, and develop their imaginary play skills under the guidance of a teacher or parent. The applicable subheading for the American Printing House for the Blind’s (APH) Reach and Match Learning Kit will be 9503.00.0073, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Tricycles, scooters, pedal cars and similar wheeled toys…dolls, other toys…puzzles of all kinds; parts and accessories thereof… ‘Children’s products’ as defined in 15 U.S.C. § 2052: Other: Labeled or determined by importer as intended for use by persons: 3 to 12 years of age.” The rate of duty will be Free. You also request consideration of the APH’s Reach & Match Learning Kit under the Nairobi Protocol. 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: parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for use in the foregoing article" 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." U.S. Note 4(b), subchapter XVII, Chapter 98, HTSUS, which establishes limits on classification of products in these subheadings, states as follows: (b) Subheadings 9817.00.92, 9817.00.94 and 9817.00.96 do not cover-- (i) articles for acute or transient disability; (ii) spectacles, dentures, and cosmetic articles for individuals not substantially disabled; (iii) therapeutic and diagnostic articles; or (iv) medicine or drugs. The primary issue is whether the APH’s Reach & Match Learning Kit is specially designed or adapted for the “use or benefit of the handicapped” and whether parts and accessories that are specially designed or adapted for use in the foregoing article fall within the meaning of Nairobi Protocol. Although the legislative history of the Nairobi Protocol discusses the concerns of Congress that the design, modification or adaptation of an article must be significant so as to clearly render the article for use by handicapped individuals, no specific definition of these terms was established by Congress. See, Senate Report (Finance Committee) No. 97-564, September 21, 1982). See also, Headquarters Ruling Letter (HRL) 951004 dated March 3, 1992. Since it is difficult to establish a clear definition of what is “specially designed or adapted," various factors must be utilized on a case-by-case basis to determine whether a given article is "specially designed or adapted" within the meaning of this statute. In HQ 556449, dated May 5, 1992, CBP set forth five factors it would consider in making this case-by-case determination.  The same factors are relevant in determining whether a part is “specially designed or adapted” for an article for the use or benefit of handicapped persons.  These factors include:  (1) the physical properties of the article itself (i.e., whether the article is easily distinguishable by properties of the design, form, and the corresponding use specific to this unique design, from articles useful to non-handicapped persons); (2) whether any characteristics are present that create a substantial probability of use by the chronically handicapped so that the article is easily distinguishable from articles useful to the general public and any use thereof by the general public is so improbable that it would be fugitive; (3) whether articles are imported by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (4) whether the articles are sold in specialty stores which serve handicapped individuals; and, (5) whether the condition of the articles at the time of importation indicates that these articles are for the handicapped.Based on the information supplied, the APH’s Reach & Match Learning Kit satisfy the five factors set out by CBP. As a result, it is the opinion of this office that a secondary classification will apply for the aforementioned product in subheading 9817.00.96, HTSUS, as “Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for use in the foregoing article: Other”, free of duty and the Merchandise Processing Fee (MPF). Note that the requirement that the importer prepare and file a U.S. Department of Commerce form ITA-362P has been eliminated via a notice from the International Trade Administration, published in the Federal Register of June 1, 2010. Also note that this classification has no effect on any quota, visa, or restricted merchandise requirements or countervailing or dumping duties.Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at https://hts.usitc.gov/current. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, please contact National Import Specialist Roseanne Murphy at roseanne.j.murphy@cbp.dhs.gov. Sincerely, Steven A. Mack Director National Commodity Specialist Division