CLA-2 RR:CR:GC 967289 JAS
Port Director, U.S. Customs and Border Protection
4341 International Parkway, Suite 600 Atlanta, GA 30354
RE: Protest 1704-04-100111; Electron Guns, Parts of Cathode-Ray Tubes;
Treatment, 19 U.S.C. 1625(c)
Dear Port Director:
This is our decision on Protest 1704-04-100111, filed by counsel on behalf of Hitachi Electronic Devices (USA), Inc., against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of electron guns for use as parts of projection tubes which are parts of projection television sets. The goods were entered under subheading 8540.99.40, HTSUS, as electron guns. They were reclassified under subheading 8540.91.50, HTSUS, as other parts of cathode-ray tubes and the entries liquidated on March 26, 2004, under this provision. This protest was timely filed on April 23, 2004.
On protest, counsel continues to maintain that subheading 8540.99.40, HTSUS, represents the correct classification. If this claim does not prevail, he claims that a treatment exists under subheading 8540.99.40, HTSUS, which can be modified only in accordance with the notice and comment procedure outlined in
19 U.S.C. 1625(c).
The merchandise at issue is electron guns specially designed for use in projection tubes which are small cathode-ray tubes used as parts of projection television sets. Projection tubes produce images which are projected through a lens onto a mirror where they are reflected onto the screen of the projection television set. As defined in standard lexicons, electron guns are a series of
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electrodes, including a cathode for producing an electron beam. Electron guns belong to a class or kind of devices that are essential to a number of electronic devices covered by heading 8540 including, but not limited to, cathode ray tubes.
The HTSUS provisions under consideration are as follows:
Thermionic, cold cathode or photocathode tubes (for example,
vacuum or vapor or gas filled tubes, mercury arc rectifying tubes,
cathode-ray tubes, television camera tubes); parts thereof:
8540.91 Of cathode-ray tubes:
8540.99.40 Electron guns;…
Whether electron guns for use in cathode-ray tubes are classifiable in subheading 8540.91.50; whether a treatment exists for these goods under subheading 8540.99.40.
LAW AND ANALYSIS:
Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. GRI 6 authorizes the classification of goods in subheadings of the same heading according to the terms of those subheadings and any related subheading notes and, by appropriate substitution of terms, to Rules 1 through 5, on the understanding that only subheadings at the same level are comparable.
Based on documentation that electron guns belong to a class or kind of electronic devices having a broad use in multiple types of thermionic, cold cathode or photocathode tubes, all provided for in heading 8540, counsel maintains that principle use of the electron guns under protest as parts of cathode-ray tubes has not been established. Citing various administrative rulings on the issue, counsel claims that the
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focus should not be on the particular product being imported, but on the class or kind of goods to which it belongs, which would make subheading 8540.99, HTSUS, the appropriate provision. Counsel’s rationale is that if the drafters of the HTSUS had intended that electron guns be classifiable in two different provisions, depending on whether for use in cathode-ray tubes or for other uses, they would have included an
8-digit breakout for electron guns under subheading 8540.91.
Assuming, without deciding, that counsel’s claim as to the drafters’ possible intent has some merit, the correct classification is nevertheless to be determined by the proper application of the GRIs. See Sea-Land Service, Inc. v. United States, 14 CIT 195 (1990). Under GRI 3, applied at the subheading level through GRI 6, where goods are, prima facie, classifiable under two or more subheadings, paragraph (a) instructs that they be classified in the subheading which provides the most specific description as opposed to subheadings providing a more general description. The comparison in this case is between subheadings at the same level, 8540.91, parts of cathode-ray tubes and 8540.99, other parts. Clearly, subheading 8540.91 provides a more narrow description of the goods under protest and has requirements that are the most difficult to satisfy. Subheading 8540.91 represents the correct classification for this merchandise.
Counsel’s alternative claim is that under 19 U.S.C. 1625(c) a “treatment” has been established under subheading 8540.99.40, HTSUS, that action on this protest contrary to the claim(s) made by Hitachi would have the effect of modifying this treatment, and requires compliance with the publication and public comment requirements of the statute and section 177.12(c), CBP Regulations. Subparagraphs1(i) and (ii) of paragraph (c) set forth the rules for determining under the section whether a treatment was previously accorded by CBP to a person’s substantially identical transactions. Among these is proof of an actual determination by a CBP officer regarding the facts and issues involved in the claimed treatment, with that officer having responsibility for the subject matter on which the determination was made. Also required is proof that over a 2-year period immediately preceding the claim of treatment CBP consistently applied that determination on a national basis as reflected, among other things, in liquidations of entries made by the person on who’s behalf treatment is claimed. CBP shall determine whether the claimed treatment occurred on a case-by-case basis and will involve an assessment of all relevant factors. In this regard, CBP will give diminished weight to transactions involving small quantities or values, and no weight whatsoever to informal entries and to other entries or transactions which CBP, in the interest of commercial facilitation and accommodation, processes expeditiously and without examination or Customs officer review.
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In a Notice of Action, dated June 21, 1999, CBP, Atlanta, instructed Hitachi to change classification of its electron guns from subheading 8540.91.50 to 8544.99.40. This is the determination by a CBP officer required by section 177.12(c)1(i)(A), CBP Regulations. The claim of treatment is made in this protest, dated April 23, 2004. In connection with evidence of the liquidation of entries over a 2-year period immediately preceding this date, as required by section 177.12(c)1(i)(C), CBP Regulations, counsel has provided a spreadsheet purporting to show consistent liquidations of electron gun entries made by or on behalf of Hitachi at the ports of Atlanta and Savannah under subheading 8540.99.40, HTSUS, from November of 2002 through and including January of 2004. Review of the submitted data by the responsible CBP officers at Atlanta and Savannah confirms that all of the referenced entries were bypass paperless entries. These are entries which CBP, in the interest of commercial facilitation and accommodation, processed expeditiously and without examination or other CBP officer review. Under section 177.12(c)(1)(ii), CBP Regulations, these entries are to be accorded no weight. There being no other relevant factors to consider, we find that no treatment was previously accorded by CBP to Hitachi’s entries of electron guns under subheading 8540.99.40, HTSUS.
Under the authority of GRI 1, the electron guns for use as parts of projection tubes are provided for in heading 8540. They are classifiable in subheading 8540.91.5000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A treatment under 19 U.S.C. 1625(c) has not been established.
The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 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.
Myles B. Harmon, Director
Commercial Rulings Division