CLA-2 RR:CR:GC 963818 GOB
U.S. Customs Service
Los Angeles Airport Area
300 S. Ferry Street
Terminal Island, CA 90731
RE: Protest 2720-99-100824; Loudspeakers
This is our decision with respect to Protest 2720-99-100824 filed on behalf of Hosiden America Corporation (“protestant”) concerning the classification of certain loudspeakers under the Harmonized Tariff Schedule of the United States (“HTSUS”).
The file indicates the following. The subject entries were filed between November 6, 1998, and November 16, 1998. The entries were liquidated between September 17, 1999, and October 1, 1999. The protest was filed on December 16, 1999.
The protestant claims that the loudspeakers (model/part nos. HDR0960 and HDR0990) are classified in subheading 8518.29.40, HTSUS. The entries were liquidated under subheading 8518.29.80, HTSUS.
The protestant describes the loudspeakers as follows:
Hosiden HDR-series receivers are speakers, i.e. they reproduce sound by converting electrical variations or oscillations into mechanical vibrations which are communicated to the air ... They are used as the sound-producing earpiece element in telecommunications devices, i.e. cellular telephones, and are sold to manufacturers of such phones ... These receiver units are imported without a housing or enclosure for incorporation into the handsets of mobile phones by mobile phone manufacturers. They are nonetheless complete loudspeakers as imported, needing only to be connected to a signal source in order to function.
The protestant further states:
Hosiden’s loudspeakers do not have a frequency range limited to 300 Hz-3.4 kHz. However, they do have a frequency range which includes these parameters but extends beyond them on either end. Hosiden contends that the only permissible construction of the language of the tariff provision is it establishes a minimum frequency range; any article encompassed within HTSUS 8518.29.40 must at least be within the 300 Hz-3.4 kHz band. However, it is permissible for articles to exceed the frequencies stated on either or both ends so long as the other requirements of the provision are satisfied. [All emphasis in original.]
The protestant makes the following assertions:
The language of the tariff provision is ambiguous and it is appropriate to resort to legislative intent to ascertain its scope ... The legislative history of the Technology Information Agreement clearly establishes that it was intended to eliminate tariffs on virtually all telecommunications products. To exclude from its scope, a common component of a telephone would defeat this intent ... No product exists which falls within the narrow interpretation asserted by Customs at the Port in Los Angeles ... The language of the tariff provision must be construed in such a manner as to avoid an absurd or anomalous result.
Are the loudspeakers classified in subheading 8518.29.40, HTSUS, or in subheading 8518.29.80, HTSUS?
LAW AND ANALYSIS:
We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). 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 GRI’s may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
The HTSUS provisions under consideration are as follows:
8518 Microphones and stands therefor; loudspeakers, whether or not mounted in their enclosures; ...
Loudspeakers, whether or not mounted in their enclosures:
8518.29.40 Without housing, having a frequency range of 300 Hz to 3.4 kHz with a diameter of not exceeding 50 mm, for telecommunication use
The subject loudspeakers have a frequency range which exceeds the frequency range of 300 Hz to 3.4 kHz, as provided in subheading 8518.29.40, HTSUS. It is Customs position that a good which exceeds a stated frequency range, as in the range stated in subheading 8518.29.40, HTSUS, is not within the scope of that subheading. This position was indicated by our determination in NY E87446 dated October 15, 1999, with respect to subheading 8518.10.40, HTSUS, which describes “Microphones having a frequency range of 300Hz to 3.4 kHz ...” The determination of NY E87446 was affirmed by Customs Headquarters 963329 dated March 23, 2000.
Accordingly, we find that the loudspeakers are precluded from classification in subheading 8518.29.40, HTSUS because their range exceeds the range stated in that provision. We find that the loudspeakers are classified in subheading 8518.29.80, HTSUS. See also HQ 963006 dated May 3, 2000.
The protestant has not provided the specific frequency range of its loudspeakers other than to advise that the loudspeakers exceed the range specified in subheading 8518.29.40, HTSUS. Further, based on the evidence of record we are unable to conclude that subheading 8518.29.40, HTSUS, does not describe some telecommunications loudspeakers.
With respect to the protestant’s claims regarding the language of the tariff provision, we note our statement in HQ 951158 dated August 24, 1992:
Furthermore, as the court has emphatically stated, “it is not for us to distort the statute to ‘fix’ what Congress either intentionally or inadvertently failed to anticipate.” Sea-Land Service, Inc. v. United States, Appeal No. 90-1311 (Decided November 30, 1990), citing Unimed, Inc. v. Quigg, 888 F.2d 826, 829 (Fed. Cir. 1989); See Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 51, 75 L.Ed. 156 (1930) (“Laws enacted with good intention, when put to the test, frequently, and to the surprise of the law maker himself, turn out to be mischievous, absurd or otherwise objectionable. But in such case the remedy lies with the law making authority, and not with the courts.”)
As detailed above, the loudspeakers (model/part nos. HDR0960 and HDR0990) are classified in subheading 8518.29.80, HTSUS.
You are instructed to DENY the protest.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
John Durant, Director
Commercial Rulings Division