HQ H023589

November 7, 2008

**CLA-2 OT:RR:CTF:TCM** H023589 HkP

**CATEGORY:** Classification

**TARIFF NO.:** 8528.12.7201

Port Director

Port of Los Angeles/Long Beach

U.S. Customs and Border Protection

301 East Ocean Blvd.

Long Beach, CA 90802

**RE:** AFR of Protest no. 2704-07-101393; DLP televisions

Dear Port Director:

This is our response to the Application for Further Review of Protest
No. 2704-07-101393 timely filed on behalf of Toshiba America Consumer
Products, L.L.C. (Toshiba), concerning the classification of DLP
(digital light processing) televisions under the Harmonized Tariff
Schedule of the United States ("HTSUS").

**FACTS:**

The merchandise at issue is televisions that operate using digital light
processing technology. They are manufactured by Toshiba and marketed and
sold as model number 42HM66, which according to the specifications sheet
submitted to U.S. Customs and Border Protection ("CBP"), is a "42"
(measured diagonally) INTEGRATED 720p DLP" television. According to the
submitted information:

> DLP is a relatively new technology that employs a Digital MicroMirror
> Device (DMD), a highly specialized optical semiconductor invented and
> licensed by Texas Instruments, to produce a video image.... \[T\]he
> DMD contains a rectangular array of over one million hinge-mounted
> microscopic mirrors. Each of these microscopic mirrors measures less
> than one-fifth the width of a human hair, and corresponds to one pixel
> in a projected image. The number of mirrors corresponds to the
> resolution of the projected image.
>
> \[T\]he mirrors on the DMD produce pixels in grey scale with over
> 1,000 different shades. To add color, a rapidly spinning wheel with
> various colors is placed between the light source and the DMD. Light
> is projected through the color wheel and, depending upon which color
> the light is shining through, the DMD pixels will be switched on or
> off to reflect that color or a mixture of colors.
>
> Through the combination of the color wheel and the mirrored pixels of
> the DMD, the DMD produces and projects the actual video image, which
> can be technically viewed on the DMD itself, although the image is
> smaller and much brighter (due to the concentrated light) than is
> actually seen by a person normally watching the DLP television.
>
> The video image generated by the DMD is then directed through a lens
> onto a mirror at the back of the television console which, in turn,
> reflects the image out through the front cover of the television. The
> DLP television front cover is actually a composite of a Fresnel and a
> lenticular lens, covered by a base plate. Thus the image produced by
> the DMD is not projected onto this medium, but is diffused by the
> composite lens and projected through the base plate to the viewer.
> \[Generally, a Fresnel lens is a flat lens that is used to focus light
> and is made up of stepped concentric rings.\]
>
> ....
>
> The DMDs incorporated into the DLP televisions covered by this protest
> have a video diagonal display of three-quarters to one and one-quarter
> of an inch. ... The DLP televisions ... are all the same Toshiba model
> (42HM66) and all have cabinets measuring 39 ¼ x 28 1/3 x 12 5/8
> inches. In addition, the televisions do not incorporate any video
> recording or reproducing apparatus.

The subject merchandise was entered on various dates between May 9, and
June 24, 2006, under subheading 8528.12.6801, HTSUSA, as "Other" color
reception apparatus for television, whether or not incorporating
radiobroadcast receivers or sound or video recording or reproducing
apparatus, with a flat panel screen, and "with a video display diagonal
not exceeding 34.29 cm." On various dates between March 23, and May 4,
2007, CBP liquidated the entries under subheading 8528.12.7201, HTSUSA,
which provides for, in pertinent part, "Other" color reception apparatus
for television, whether or not incorporating radiobroadcast receivers or
sound or video recording or reproducing apparatus, with a flat panel
screen, "Other". The protest was timely filed on June 14, 2007.

**ISSUE:**

How is the "video diagonal display" of a DLP television measured?

What is the correct classification of a DLP television under the HTSUS?

**LAW & ANALYSIS:**

Initially, we note that the matter protested is protestable under 19
U.S.C. §1514(a)(2) as a decision on classification. The protest was
timely filed within 180 days of liquidation of the first entry for
entries made on or after December 18, 2004. (Miscellaneous Trade and
Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii),
(iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).

Further Review of Protest No. 2704-07-101393 was properly accorded to
protestant pursuant to 19 C.F.R. § 174.24 because the decision against
which the protest was filed involves questions of law and fact that have
not been ruled on by the Commissioner of Customs or his designee or by
the Customs courts.

Classification under the HTSUS is made in accordance with the General
Rules of Interpretation. 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 require otherwise, the remaining GRIs
may then be applied.

The 2006 HTSUS provisions under consideration are as follows:

8528 Reception apparatus for television, whether or not incorporating
radiobroadcast receivers or sound or video recording or reproducing
apparatus; video monitors and video projectors:

> Reception apparatus for television, whether or not incorporating
>
> radiobroadcast receivers or sound or video recording or reproducing
> apparatus:

8528.12 Color:

> \* \* \*
>
> With a flat panel screen:
>
> \* \* \*
>
> Other:

**8528.12.6801** With a video display diagonal not

> exceeding 34.29 cm ...

**8528.12.7201** Other .....

Additional U.S. Note 9 to Section XVI, HTSUS (2006) provides: "For the
purposes of this chapter, the video display diagonal is determined by
measuring the maximum straight line dimension across the visible portion
of the faceplate used for displaying video."

There is no dispute that the televisions ("TVs") at issue are provided
for under heading 8528, HTSUS, or that they are specifically provided
for under subheading 8528.12, HTSUS, because they are color reception
apparatus for television. The dispute arises at the 8/10-digit level of
classification and concerns whether the video display diagonal of the
TVs exceeds 34.29 cm.

Protestant believes that reclassification of DLP TVs under subheading
8528.12.6801, HTSUSA, "is warranted due to the manner in which the video
display diagonal for a television employing DLP technology should be
measured." Specifically, Protestant argues that it is appropriate to
measure the video display diagonal of a DLP TV according to the size of
the DMD because that is the element that produces and displays the video
image seen by the viewer. According to Protestant, this is unlike CRT
and plasma TVs, the images of which are generated and viewed directly on
the face plate, and the video display diagonals of which are properly
measured across the face plate. In sum, Protestant believes that since
the composite front lens plate of a DLP TV does not produce or display
any video image it should not be the basis for measuring the video
display.

CBP has previously classified a DLP rear projection video projector with
a self-contained screen in subheading 8528.30.6801, HTSUSA, based on the
measurement of its video display diagonal across its front cover.
[See]{.underline} New York Ruling Letter ("NY") K81133, dated November
17, 2003. Protestant mistakenly refers to this product as a DLP TV. CBP
has also issued rulings on the classification of DLP video projectors
without screens and have classified them according to the diagonal
measurement of their DMDs.

Protestant believes that we should apply the reasoning used to classify
DLP video projectors without self-contained screens to the
classification of DLP TVs. The argument is made that the critical
technology of a DLP projector and DLP television is the same, in that,
in both products the DMD is the element that produces the video image
and the only difference between the projector and the TV is how the
video image is projected and viewed. In Protestant's submission, we are
told that, "in a DLP television the image is diffused (and thus dimmed)
by a series of lenses, including the front composite lens, and viewed
directly". In other words, the image produced by the DMD is not
projected onto the faceplate of the television but is diffused and
projected through that plate to the viewer. On the other hand, "in a DLP
video projector, the direct image is concentrated and is too bright to
be viewed directly and must instead be projected onto an opaque viewing
screen" (that is not a part of the projector). Protestant argues that
this difference is immaterial and that the video display diagonal of DLP
TVs should be determined by measuring the maximum straight line
dimension across the diagonal of the DMD because the DMD serves as the
medium on which the complete visible image is produced and displayed.

We find that the way in which DLP projectors without self-contained
screens are classified, in relation to the measurement of their DMDs, is
not determinative of the classification of DLP TVs because these
projectors and DLP TVs are dissimilar goods. Further, although subject
to the same U.S. Note, they display images differently.

Additional U.S Note 9 to Section XVI, HTSUS, requires that video display
diagonal be measured "across the visible portion of the faceplate used
for displaying video." There is no requirement evident in this Note that
video content originate on the faceplate; the only requirement is that
the portion of the faceplate used for displaying video and that is
visible be measured. DLP TVs have viewing screens incorporated into them
and it is on these screens that video images are displayed. In this
case, the viewing screens are 42 inches when measured diagonally.
Accordingly, we find that the 42-inch screens of the DLP TVs at issue,
on which viewers see video images, are the visible portions of the
faceplate mentioned in Additional U.S. Note 9. It is those screens that
must be measured for purposes of the Note. This conclusion comports with
previous decisions by CBP in which DLP televisions were classified in
subheading 8528.12.7201, HTSUSA, based on the diagonal measurement of
their viewing screens. [See]{.underline} NY I88112, dated November 4,
2002. [See also]{.underline} Headquarters Ruling Letter ("HQ") 562753,
dated July 31, 2003, (concerning the NAFTA eligibility of a DLP
television).

**HOLDING:**

By application of GRI 1 and Additional U.S Note 9 to Section XVI, HTSUS,
the DLP televisions at issue are classified under heading 8528, HTSUS
(2006). They are specifically provided for in subheading 8528.12.7201,
HTSUSA, which provides for: "Reception apparatus for television, whether
or not incorporating radiobroadcast receivers or sound or video
recording or reproducing apparatus ...: Reception apparatus for
television, whether or not incorporating radiobroadcast receivers or
sound or video recording or reproducing apparatus: Color: With a flat
panel screen: Other: Other." The 2006 column one, general rate of duty
is 5% *ad valorem*.

Since the rate of duty under the classification indicated above is the
same as the liquidated rate, you are instructed to deny this protest in
full. In accordance with Sections IV and VI of the CBP [Protest/Petition
Processing Handbook]{.underline} (HB 3500-08A, December 2007, pp. 24 and
26), you are to mail this decision, together with the CBP Form 19, to
the protestant no later than 60 days from the date of this letter.

Sixty days from the date of the decision the Office of International
Trade, Regulations and Rulings, will make the decision available to CBP
personnel, and to the public on the Bureau of Customs and Border
Protection 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.

> Sincerely,

Myles B. Harmon, Director

Commercial and Trade Facilitation Division