CLA-2 RR:TC:MM 958781 RFA
Port Director
U.S. Customs Service
P.O. Box 619050
DFW Airport, TX 75261
RE: Protest 5501-95-100486; Color Picture Tubes; Parts for Video
Games; Cathode-Ray Tubes; Legal Note 3 to chapter 95;
Additional U.S. Note 5 to chapter 85; Additional U.S. Rule
of Interpretation 1(c); Heading 9504; HQs 955854, 953141,
952852, 089891
Dear Port Director:
The following is our decision regarding Protest 5501-95-100486, which concerns the classification of color picture tubes
under the Harmonized Tariff Schedule of the United States
(HTSUS).
FACTS:
The subject merchandise consists of "B-Grade" color picture
tubes, with diagonal measurements of 13, 19, and 27 inches. The
subject B-Grade tubes are from manufacturing facilities of "A-Grade" picture tubes. A-Grade picture tubes are used in the
production of television sets and other similar products. The B-Grade picture tubes are differentiated from the A-Grade picture
tubes based upon the following characteristics: minute black dots
on the viewing area of the screen; conversions may be slightly
over the edge of the specification/tolerance; and balance of
color guns may be slightly over the edge of
specification/tolerance. Although the B-Grade tubes do not meet
the technical specifications of A-Grade tubes, the picture
quality is still acceptable for low resolution applications. B-Grade pictures tubes are incorporated into bar-top card-type
video games, such as blackjack, poker, etc., and also into
bowling alleys for overhead electronic scoring.
It is claimed that the video game industry exclusively uses
B-Grade picture tubes for their monitors. The protestant further
states that all the tubes purchased are specifically made for
video game monitor use only. We further note that, in its
condition as imported, the subject picture tubes have no other
parts attached to them, other than the installed gun elements in
the necks. According to other information provided, the picture
tubes can only receive signals sent through the chassis of the
system, which is basically the printed circuit control system of
the tube. The picture tube is attached and hooked to the printed
circuit control system through the degaussing coil and a metal
frame. The chassis determines what image is being displayed on
the picture tube.
The merchandise was entered under subheading 9504.10.00,
HTSUS, as parts of video games. The entries were liquidated on
August 11, 1995, under subheading 8540.11.10 or 8540.11.28,
HTSUS, as color cathode ray tubes (depending on size). The
protest was timely filed on November 7, 1995.
The subheadings under consideration are as follows:
8540.11: Thermionic, cold cathode or photo cathode tubes
(for example, vacuum or vapor or gas filled tubes,
mercury arc rectifying tubes, cathode-ray tubes,
television camera tubes); parts thereof:
Cathode-ray television picture tubes, including
video monitor cathode-ray tubes: Color:
8540.11.10: Non-high definition, non-projection,
having a video display diagonal
exceeding 35.56 cm. . . .
Goods classifiable under this provision have a
general, column one rate of duty of 15 percent ad
valorem.
8540.11.28: Non-high definition, non-projection,
having a video display diagonal not
exceeding 35.56 cm: Other. . . . .
Goods classifiable under this provision have a
general, column one rate of duty of 15 percent ad
valorem.
9504.10.00 Articles for arcade, table or parlor games,
including pinball machines, bagatelle,
billiards and special tables for casino
games; automatic bowling alley equipment;
parts and accessories thereof: Video games of
a kind used with a television receiver and
parts and accessories thereof. . . .
Goods classifiable under this provision have a
general, column one rate of duty of free.
ISSUE:
Whether the B-grade color picture tubes are classifiable as
color cathode-ray tubes, or as parts of video games?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's). GRI
1 provides that classification shall be determined according to
the terms of the headings and any relative section or chapter
notes.
The port changed the entered classification from heading
9504, HTSUS, as parts of video games to heading 8540, HTSUS, as
cathode ray tubes, based upon the application of Additional U.S.
Rule of Interpretation 1(c), HTSUS, which states that: "[i]n the
absence of special language or context which otherwise
requires--a provision for parts of an article covers products
solely or principally used as a part of such articles but a
provision for "parts" or "parts and accessories" shall not
prevail over a specific provision for such part or accessory".
The protestant states that Additional U.S. Rule of
Interpretation does not apply because chapter 95, HTSUS, which
provides for parts of video games, contains special language in
Legal Note 3 to chapter 95, HTSUS. Legal Note 3 to Chapter 95,
HTSUS, states that: "Subject to note 1 above, parts and
accessories which are suitable for use solely or principally with
articles of this chapter are to be classified with those
articles". See HQ 955854 (July 28, 1994); HQ 953141 (February 8,
1993); HQ 952852 (April 29, 1993); and HQ 089891 (September 15,
1993). The protestant argues that the merchandise is properly
classifiable under heading 9504, HTSUS, as parts of video games
because "B-Grade picture tubes are used solely or principally in
the manufacture of video game monitors for the video game
industry".
However, for the B-Grade picture tubes to be a part of video
game monitors, the picture tubes must meet the terms of being
solely or principally used as such a part. In their condition as
imported, the picture tubes do not have any chassis or control
circuitry which dedicates the picture tubes for use solely or
principally as video game monitors. The subject picture tubes
are capable of receiving and processing electronic signals from a
number of different applications including video games,
televisions, closed circuit television, etc. Therefore, we find
that the subject B-Grade picture tubes do not meet the
requirements of Legal Note 3 to Chapter 95, HTSUS, of being
solely or principally used as video game monitors.
This position is supported by the terms of Additional U.S.
Note 5 to chapter 85, HTSUS, which states that:
Picture tubes imported in combination with, or
incorporated into, other articles are to be classified
in subheadings 8540.11 through 8540.12, inclusive,
unless they are--
(a) incorporated into complete television receivers,
as defined in additional U.S. note 6 below;
(b) incorporated into fully assembled units such as
word processors, ADP terminals, or similar articles;
(c) put up in kits containing all the parts necessary
for assembly into complete television receivers, as defined
in additional U.S. note 6 below; or
(d) put up in kits containing all the parts necessary
for assembly into fully assembled units such as word
processors, ADP terminals, or similar articles.
To be classified as a video game monitor of heading 9504,
HTSUS, the B-Grade picture tubes must meet the terms of
Additional U.S. Note 5 to chapter 85, HTSUS, by being put up in
kits containing all the parts necessary for assembly into a video
game monitor. Absent evidence that the subject picture tubes can
be solely or principally used as video game monitors, the picture
tubes must be classified under heading 8540, HTSUS.
HOLDING:
The B-Grade picture tubes are classifiable under subheading
8540.11.10 or 8540.11.28, HTSUS, as color cathode ray tubes
(depending on size).
The protest should be DENIED. This decision should be
mailed by your office 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. In accordance with 19 U.S.C. 1515(a),
the protesting party shall be informed of the reason of the
denial (i.e., this ruling) and of their right to bring a civil
action in the U.S. Court of International Trade within 180 days
after the date of mailing of the Notice of Denial. The
protesting party may obtain further information concerning the
institution of an action by writing the Clerk of U.S. Court of
International Trade, One Federal Plaza, New York, NY 10007.
(212-264-2800). Sixty days from the date of the decision the
Office of Regulations and Rulings will take steps to make the
decision available to Customs personnel via the Customs Rulings
Module in ACS and the public via the Diskette Subscription
Service, Freedom of Information Act and other public access
channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division