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HQ 950431

December 5, 1991

CLA-2 CO:R:C:M 950431 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.00.96; 9021.90.40

Area Director of Customs
J.F.K. Airport
Building 178
Jamaica, NY 11430

RE: Hearing Aid Parts and Accessories; GRI 2 (a); HQ 089204; Components Shipped in Bulk Form

Dear Sir:

This is our decision on Application for Further Review of Protest No. 1001-1-104272, dated May 25, 1991, concerning your action in classifying and assessing duty on hearing aid parts and accessories under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of various hearing aid parts and accessories such as miniaturized microphones, amplifiers, batteries, wires, noise limiters, ear pieces, switches, potentiometers, coils, insulators, etc. All of these items are specifically designed for an "Otican" hearing aid. After importation into the United States, and based upon a prescription written for a particular patient by a physician, "Otican" hearing aids will be assembled from these items. These items are shipped in bulk form from Denmark. Even though the merchandise is shipped in bulk form, it is claimed that any number of hearing aids can be assembled with the spare parts and accessories in one shipment.

The entry documents indicate that some portions of the entries were complete, finished hearing aids. It is not clear as to the disposition of this merchandise. We assume they were properly classified under subheading 9817.00.96, HTSUS, which provides for "[a]rticles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons: [o]ther", and are not included in this protest.

ISSUE:

What is the proper classification of the subject hearing aid parts and accessories under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative chapter or section notes.

The subject merchandise was entered under subheading 9817.00.96, HTSUS. However, the merchandise was liquidated under subheading 9021.90.40, HTSUS, which provides for: "[p]arts and accessories for hearing aids and for pacemakers for stimulating heart muscles."

It is argued that the merchandise shipped in bulk form consists of unassembled hearing aids under GRI 2 (a). GRI 2 (a) provides that:

[a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.

In understanding GRI 2 (a), the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). Explanatory Note 2 (V) (p. 2), HTSUS, states, in part, that "[w]hen goods are so presented, it is usually for reasons such as requirements or convenience of packing, handling, or transport." Explanatory Note 2 (VII) (p. 2), HTSUS, states, in part, that "[f]or the purposes of this Rule, 'articles presented unassembled or disassembled' means articles the components of which are to be assembled either by means of simple fixing devices (screws, nuts, bolts, etc.) or by riveting or welding, for example, provided only simple assembly operations are involved."

HQ 089204, dated November 22, 1991, dealt with shipments in bulk form of component parts for alarm systems. It was said that the bulk shipments of numerous components and parts are "not the type of 'convenience of packing, handling or transport' that the [Explanatory Notes] contemplate. We have previously addressed this issue in Internal Advice 4/91, HQ 088595, and HQ 087888, dated December 3, 1990, and held that these types of shipments are 'nothing more than disparate components in bulk form.'"

The importer has made no statements or offered any evidence that these shipments would include anything more than bulk shipments of numerous components and parts. Also, no evidence has been provided as to whether simple assembly operations are involved in creating hearing aids from the parts and accessories. Therefore, the volume shipments of parts and accessories would not be considered as having the essential character of complete hearing aids because they are apparently nothing more than disparate components shipped in bulk form.

As noted earlier, you classified the various parts and accessories under subheading 9021.90.40, HTSUS. Note 2 (a) to chapter 90, HTSUS, provides that:

[p]arts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85, or 91 are in all cases to be classified in their respective headings.

It appears that some of the merchandise, although parts and accessories for hearing aids, may have been erroneously classified in heading 9021, HTSUS, rather than in their respective headings under GRI 1 and Note 2 (a) to chapter 90, HTSUS. However, no claim has been made as to the proper classification. 19 CFR 174.13 (5) and (6) noted.

HOLDING:

The subject merchandise is not classifiable under subheading 9817.00.96, HTSUS. Under GRI 1 and Note 2 (a) to chapter 90, HTSUS, some items may have been erroneously classified in heading 9021, HTSUS, rather than in their respective headings. Those items that are not specifically provided elsewhere are classifiable under subheading 9021.90.40, HTSUS.

The protest should be denied in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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