CLA-2 OT:RR:CTF:TCM H013648 HkP
Port Director
Port of Los Angeles
U.S. Customs and Border Protection
11099 South La Cienega Blvd.
Los Angeles, CA 90045
RE: Internal Advice 07/016; wireless microphones
Dear Port Director:
This is in response to your memorandum, dated June 19, 2007, forwarding a request for Internal Advice (“I/A”) initiated on behalf of Sony Electronics, Inc. (“Inquirer”). At issue is the proper classification of model UTXH1/6264 wireless microphones under the Harmonized Tariff Schedule of the United States (“HTSUS”). In reaching our decision we have taken into consideration additional information submitted to this office on September 3, 2008. We apologize for our delay in responding to you.
FACTS:
According to the information submitted, model UTXH1/6264 is a UWP Series handheld wireless microphone composed of a unidirectional dynamic microphone capsule fitted to a receiver. The microphone operates on UHF TV channels 62, 63, 64, and 65 (758 – 782 MHz) and offers a choice of 188 frequencies. Microphone specifications include: internal antenna with ¼ wave length wire; LCD indicator which shows operating channel number/frequency, attenuator level, RF-output level (high-low), audio input status, transmitter battery status and accumulated operating time; selectable RF output level – 5mW (suitable for simultaneous multi-channel operation) or 30 mW (for long distance transmission); and, an audio attenuator adjustment range of 0–21dB (in 3dB steps), which allows adjustment of the audio-input level to suit each user’s voice. The microphone is not imported with a corresponding wireless tuner or transmitter.
Prior to the 2007 amendments to the Harmonized System (HS), wireless microphones were classified under heading 8525, HTSUS. Based on the U.S International Trade Commission’s Proposed Modifications to the Harmonized Tariff Schedule of the United States (the correlation tables), Inquirer queries whether the correct classification of the microphones under HTSUS 2007 is heading 8517 (transmission or reception apparatus) or heading 8518 (microphones). Both Inquirer and the Port believe that the correct classification of wireless microphones under HTSUS 2007 is heading 8517 (8517.69.00) HTSUS.
ISSUE:
Whether wireless microphones are classified under heading 8517, HTSUS (2007), as other transmission or reception apparatus or in heading 8518, HTSUS (2007), as microphones.
LAW AND ANALYSIS:
As an initial matter, we note that the U.S International Trade Commission’s correlation tables are not dispositive concerning the classification of articles under the HTSUS.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
8517 Telephone sets, including telephones for cellular networks or for other wireless networks; other apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide area network), other than transmission or reception apparatus of heading 8443, 8525, 8527 or 8528; parts thereof:
8518 Microphones and stands therefor; loudspeakers, whether or not mounted in their enclosures; headphones and earphones, whether or not combined with a microphone, and sets consisting of a microphone and one or more loudspeakers; audio-frequency electric amplifiers; electric sound amplifier sets; parts thereof:
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
EN 85.17 states, in relevant part:
This heading covers apparatus for the transmission or reception of speech or other sounds, images or other data between two points by variation of an electric current or optical wave flowing in a wired network or by electro-magnetic waves in a wireless network. The signal may be analogue or digital….
EN 85.18 provides, in relevant part:
This heading covers microphones, loudspeakers, headphones, earphones and audio frequency electric amplifiers of all kinds presented separately, regardless of the particular purpose for which such apparatus may be designed (e.g., telephone microphones, headphones and earphones, and radio receiver loudspeakers).
….
A) MICROPHONES AND STANDS THEREFOR
Microphones convert sound vibrations into corresponding variations or oscillations of electric current, thus enabling them to be transmitted, broadcast or recorded. According to their working principle, they include:
(1) Carbon microphones….
(2) Piezo electric microphones …
(3) Moving coil or ribbon microphones (also known as dynamic microphones), in which the sound vibrations are brought to bear on a coil or an aluminum ribbon situated in a magnetic field, thus producing electric impulses by induction.
(4) Capacitance or electrostatic (condenser) microphones….
(5) Thermal or hot wire microphones….
There are many varied applications of microphones (e.g., in public address equipment; telephony; sound recording; aircraft or submarine detectors; trench listening devices; study of heart beats).
Inquirer argues that the microphones are composite goods (sic) [machines] that should be classified under heading 8517, HTSUS, in accordance with Note 3 to Section XVI, HTSUS, which provides:
Unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function.
The General EN to Section XVI, HTSUS, explains, in relevant part that “Note 3 to Section XVI need not be invoked when the composite machine is covered as such by a particular heading….” In this case, heading 8517, HTSUS, describes the microphones by use (transmission or reception apparatus for voice, images or other data) and heading 8518, HTSUS, describes them by name (microphones). Consequently, Note 3 need not be applied to classify the microphones under either of these headings.
However, because at GRI 1 more than one heading describes the microphones at issue, resort must be made to GRI 3, which is the applicable rule for goods that are classifiable under two or more headings. GRI 3(a) provides, in relevant part, that when goods are, prima facie, classifiable under two or more headings, the heading which provides the most specific description shall be preferred to headings providing a more general description. EN (IV) to GRI 3(a) explains that: “in general it may be said that: (a) A description by name is more specific than a description by class” and “(b) If the goods answer to a description which more clearly identifies them, that description is more specific than one where identification is less complete.” Our courts have interpreted this so-called “rule of relative specificity” to mean that “we look to the provision with requirements that are more difficult to satisfy and that describe the article with the greatest degree of accuracy and certainty." Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (citations omitted) (Fed. Cir. 1998).
Transmission and reception apparatus of heading 8517, HTSUS, transmit or receive speech, other sounds, images and other data. See EN 85.17. On the other hand, EN 85.18(A) states that microphones of heading 8518, HTSUS, convert sound vibrations into corresponding electric current, which enables them to be transmitted, broadcast or recorded.
While the ability of microphones at issue to transmit and receive electric signals is not described by EN 85.18, an EN is not legally binding and may not be applied in such a manner that it invalidates or is otherwise inconsistent with the legal text. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). Heading 8518, HTSUS, is an eo nomine provision for microphones without any stated exceptions. Consequently both wired and wireless microphones are within the scope of the heading.
Based on its limited use requirement (sound only versus sound, images and other data (heading 8517, HTSUS)), heading 8518, HTSUS, has the requirements that are most difficult to satisfy and describe microphones with the greatest degree of accuracy and certainty. See Orlando Food Corp. Accordingly, we find that the microphones at issue are classified in heading 8518 (8518.10.80), HTSUS. This is consistent with the consensus decision of the Harmonized System Committee of the World Customs Organization, taken at its 44th Session (September 2009), to classify a wireless microphone in heading 85.18 of the Harmonized System.
HOLDING:
By application of GRI 3(a), UTXH1/6264 wireless microphones are classified in heading 8518, HTSUS. They are specifically provided for in subheading 8518.10.80, HTSUS, which provides for, in pertinent part: Microphones and stands therefore; …: Microphones and stands therefore: Other. The 2007 column one, general rate of duty is 4.9% ad valorem.
You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division