CLA-2-90:OT:RR:NC:N4:405
John Bessich
Follick & Bessich
33 Walt Whitman Road, Suite 310
Huntington Station, NY 11746
RE: The tariff classification of the RCA Symphonix Personal Sound Amplifier from China
Dear Mr. Bessich:
In your letter dated May 10, 2011, on behalf of Audiovox Electronics Co., you requested a tariff classification ruling. A sample was provided.
In your submission you state:
“The RCA Personal Sound Amplifier, further identified as the RPSA10, is made in China and imported by Audiovox. The RPSA10 includes a high-quality, non-resonant plastic earpiece, gray plastic charging case with transparent blue plastic top, a plug-in AC power adapter with cable, plastic left and right ear tubes, and plastic medium and large ear domes. The RPSA10 is packaged for retail sale in a clear plastic container with a printed paper user guide, use and care pamphlet, accessories pamphlet, and warranty registration card. The main component of the RPSA10, the earpiece, incorporates a 15-hour rechargeable NiMH battery. The user recharges the earpiece battery by placing it in the charging case, inserting the AC adapter cable into the case, and plugging the adapter plug wire into a standard electrical outlet. The charging case and top also serve together as a storage compartment for the earpiece.
“The earpiece includes an on/off switch, volume button to switch between three sound settings, a microphone to pick up sounds in the user’s immediate surroundings, a tube to carry the audio from the earpiece directly into the ear, a tube connector which attaches the tube to the earpiece, and the dome, which fits securely in the ear, similar to an earbud. Because the earpiece fits over the ear, with the thin sound tube inserted into either ear with the dome, the user may continue to use a cellphone or Smartphone. Moreover, the earpiece is thin and lightweight and has been designed not to interfere with eyeglasses that may be worn by the user.
“Using high-definition digital sound processing, the RPSA10 enables the user to hear better in certain situations. It provides speech frequency amplification and active layered noise reduction.”
You also state:
“The RPSA10 does not require a prescription or a hearing test for purchase and is not sold or intended for use as a hearing aid for FDA (Food & Drug Administration) purposes.”
Harmonized System Explanatory Note (IV) to Heading 9021, entitled HEARING AIDS, states:
“These are generally electrical appliances with a circuit containing one or more microphones (with or without amplifier), a receiver and a battery. The receiver may be worn internally or behind the ear, or it may be designed to be held in the hand against the ear.
This group is restricted to appliances for overcoming deafness; it therefore excludes articles such as headphones, amplifiers and the like used in conference rooms or by telephonists to improve the audibility of speech.”
Although these imports are not optimized for the individual after extensive (and expensive) hearing tests by an audiologist, which is the most effective method of improving an individual’s hearing, they should significantly improve the user’s hearing especially when the hearing loss is not severe. The HS EN specifically includes a device held against the ear, which is also not the most effective method.
The Proper Use and Care pamphlet in the package indicates that the tube that goes inside the ear canal that is designed for the right ear can be replaced by one for the left ear and that “with proper care, you RCA Symphonix earpiece should provide years of use.” This is not indicative of an item to improve hearing for those with normal hearing in both ears, but dealing with conferences, traffic noise, etc.
Whether or not it is regulated by the FDA as a Hearing Aid for their purposes, that is not controlling regarding its classification. As stated in Headquarters Ruling Letter 946267, dated February 2, 2001: “However, ‘It is well established that statutes, regulations and administrative interpretations relating to “other than tariff purposes” are not determinative of Customs classification disputes’ Amersham Corp. v. United States, 5 CIT 49, 56 (1983). Articles are classified by the FDA to protect public safety, not as guidance to Customs classification. HQ 085064 dated August 24, 1990. See also, HQ 962181 dated January 13, 1999.”
We agree that the applicable subheading for the RCA Symphonix Personal Sound Amplifier will be 9021.40.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Hearing Aids, excluding parts and accessories thereof. The rate of duty will be free.
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 http://www.usitc.gov/tata/hts/.
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, contact National Import Specialist J. Sheridan at (646) 733-3012.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division