CLA-2 RR:CR:GC 963003 GOB
Area Port Director
U.S. Customs Service
605 W. 4th Ave., Room 205
Anchorage, Alaska 99501
RE: Protest 3196-98-100028; Liquid crystal glass substrates; Glass sandwiches; Sharp Microelectronics Technology, Inc. v. United States
Dear Sir:
This is our decision regarding Protest 3196-98-100028, filed on behalf of Standish Industries (“protestant”) concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of liquid crystal glass substrates.
FACTS:
The four entries at issue were filed between August 14, 1997 and October 9, 1997. The entries were liquidated on June 26, 1998. The protest was filed on September 24, 1998.
The merchandise on two of the entries was entered under subheading 8531.20.00, HTSUS. The merchandise on the other two entries was entered under subheading 9013.80.70, HTSUS.
The merchandise was liquidated under subheading 9013.80.90, HTSUS or subheading 9013.80.70, HTSUS.
The protestant advises that Standish Industries has been acquired by Planar Systems, Inc. and is now doing business as Planar Systems, Inc.
In its most recent submission dated October 10, 2000, the protestant contends that the articles are classified in subheading 8531.20.00, HTSUS. It states that the merchandise at issue is not properly described as “glass sandwiches,” but is referred to as “LCD’s” (or liquid crystal displays) in all commercial documents. It cites HQ 957723 dated June 2, 1995, in support of its claimed classification.
ISSUE:
What is the tariff classification of the subject merchandise?
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:
8531 Electric sound or visual signaling apparatus (for example, bells, sirens, indicator panels, burglar or fire alarms) other than those of heading 8512 or 8530; parts thereof:
8531.20.00 Indicator panels incorporating liquid crystal devices (LCD’s) or light emitting diodes (LED’s)
* * * * * *
9013 Liquid crystal devices not constituting articles provided for more specifically in other headings ...
9013.80 Other devices, appliances and instruments:
9013.80.70 Flat panel displays other than for articles of heading 8528
9013.80.90 Other
Support for classification in subheading 9013.80.90, HTSUS, is found in EN 90.13, which provides in pertinent part as follows:
This heading includes:
(1) Liquid crystal devices consisting of a liquid crystal layer sandwiched between two sheets or plates of glass or plastics, whether or not fitted with electrical connections, presented in the piece or cut to special shapes and not constituting articles described more specifically in other headings of the Nomenclature. [Emphasis in original.]
In Sharp Microelectronics Technology, Inc. v. United States 122 F. 3d 1446 (1997), the appellate court affirmed the holding of the Court of International Trade, 20 CIT 793 (1996), that imported glass cells consisting of two pieces of processed glass with a layer of liquid crystal injected between them were classified in subheading 9013.80.60, HTSUS. Subheading 9013.80.60, HTSUS, is the predecessor provision to current subheading 9013.80.90, HTSUS.
In HQ 961194, dated September 29, 1998, we found the goods at issue there, described below, to be classified in subheading 9013.80.90, HTSUS. We stated as follows, in pertinent part:
The subject merchandise consists of liquid crystal display (LCD) “glass sandwiches” for signaling devices. In their condition as imported, the “glass sandwich” consists of liquid crystal filled between two layers of glass with no driver electronics attached.
...
The U.S. has consistently held that glass sandwiches are classifiable under heading 9013, which provides for: “[l]iquid crystal devices not constituting articles provided for more specifically in other headings ...” See HQ 951868 (October 31, 1992); HQ 951609 (October 20, 1992); HQ 952973 (August 5, 1993). This position has been affirmed by the courts in Sharp Microelectronics Technology, Inc. v. United States, 932 F. Supp. 1499 (CIT 1996), aff’d, 122 F. 3d 1446, CAFC Slip Op. 97-1013 (September 2, 1997).
[The ruling then excerpts EN 90.13, excerpted above.]
Based upon HQs 951868, 951609, and 952973, as well as the holdings in Sharp Microelectronics Technology, Inc., and the language of EN 90.13, we find that the subject LCD “glass sandwiches” are classifiable under heading 9013, HTSUS ...
...
Glass sandwiches do not meet the terms of subheading 9013.80.70, because in their condition as imported they are not displays because they do not contain the electronics (row and column drivers) that allow an LCD to display. Therefore, we find that the LCD glass sandwiches are classifiable under subheading 9013.80.90, HTSUS.
We note that in May of 1997 several Customs officials met with representatives of the protestant with respect to the classification of the protestant’s products. Most of the merchandise which is the subject of this protest was covered in that review, and the protestant was advised that such merchandise was classified in subheading 9013.80.60, HTSUS, which is the predecessor provision to the current 9013.80.90, HTSUS.
We note further that the protestant’s catalog, in the “Terms & Definitions” section provides as follows: “GLASS ONLY – a phrase used to indicate the completed LCD proper, without backlights, drive electronics, et cetera. Not a module.” It is these “glass only” items that are at issue in this protest. The “glass only” item is distinguished from the “MODULE, LCD” item in the protestant’s catalog, which is defined as “Terminology typically used to describe an assembly of LCD glass, PCB, drivers, bezel, backlight, etc.”
It is Customs determination that the goods at issue are glass sandwiches substantially identical to those in Sharp Microelectronics Technology, Inc. v. United States and HQ 961194.
It is also Customs determination that the merchandise ruled upon in HQ 957723 dated June 2, 1995, cited by the protestant, is different from the merchandise at issue here. In HQ 957723, the liquid crystal devices were complete devices fitted with electrical connectors.
In general, with respect to the issue of a ruling and a subsequent court case, in HQ 961194 we stated:
On May 25, 1989, Customs New York issued NY 841178 to you, classifying your LCD “glass sandwiches” under subheading 8531.90.00, HTSUS, as parts of signalling apparatus. In your submission, you asked whether this ruling was still valid in light of the courts’ decisions in Sharp Microelectronics Technology, Inc. v. United States. Pursuant to section 152.16 of the Customs Regulations [19 CFR 152.16], unless the Commissioner of Customs otherwise directs, the principles of any court decision adverse to a Customs ruling shall supersede that ruling. Therefore, we find that NY 841178 no longer reflects the proper classification of LCD “glass sandwiches.”
After a consideration of this matter we find that all of the subject merchandise is classified in subheading 9013.80.90, HTSUS, as: “Liquid crystal devices not constituting articles provided for more specifically in other headings ... : ... Other devices, appliances and instruments: ... Other.”
Our determination is consistent with the courts’ decisions in Sharp Microelectronics Technology, Inc. v. United States, HQ 961194 and the other rulings cited therein, E.N. 90.13, and the classification advice provided by Customs personnel to the protestant.
HOLDING:
As detailed above, the subject articles are classified in subheading 9013.80.90, 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.
Sincerely,
John Durant, Director
Commercial Rulings Division