June 9, 2004 CBP Bulletin Notices on Position Sensors and Receipt of Lever-Rule Application
In the June 9, 2004 issue of the U.S. Customs and Border Protection Bulletin (CBPBulletin) (Vol. 38, No. 24), CBP issued notices (a) proposing to revoke or modify three classification rulings on position sensors, and (b) announcing its receipt of a "Lever-Rule" application from Canon U.S.A., Inc. concerning fax toner cartridges. CBP states that with respect to the three classification rulings, it is also proposing to revoke any treatment it has previously accorded to substantially identical transactions that is contrary to its position in the notice.
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Regarding the proposed revocations and modification, CBP states that any party who has received a contrary ruling or decision on the subject merchandise, or any party involved with a substantially identical transaction, should advise CBP by July 9, 2004, the date that written comments on the proposed rulings are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice. CBP also states that the notice containing the proposed rulings covers any rulings on the subject merchandise that may exist but have not been specifically identified.
Proposed Revocation and Modification of Three Classification Rulings
Position Sensors. At issue are the Hall-Effect Gear Tooth Sensor (proposed HQ 967134) and the Hall-Effect Speed Sensor (proposed HQ 967103), which CBP states, among other things, are used mainly in automotive engines to generate electrical signals relative to a rotating cam or crankshaft which are relayed to an on-board printed circuit board (pcb) that processes these signals and, in relation thereto, initiates or ceases an action within the automotive engine.
Also at issue is the Crankshaft Position Sensor (proposed HQ 967135), which is used in conjunction with the crankshaft of an internal combustion piston engine. It produces and transmits electrical pulses to communicate the rotational position of the crankshaft to the electronic control unit (ECU) so that the fuel injection sequence is properly accomplished.
CBP is proposing to issue HQ 967134, HQ 967135, and HQ 967103 in order to revoke HQ 965764 and NY G86705, and modify NY J87676, respectively, and reclassify the position sensors under HTS 8543.89.4000 which provides in part for "electric synchros and transducers, etc." rather than under HTS 8543.89.9695 as "other machines and apparatus."
Based on its reasoning in HQ 964599 (dated 12/22/00), CBP states that the subject position sensors are transducers which convert shaft rotations into an output of electric pulses that can be recognized by a processor.
As a result, CBP is proposing that the position sensors are goods included in HTS 8543, in accordance with HTS Section XVI, Note 2(a) and HTS Chapter 90, Note 2(a) which state, among other things, that parts of machines which are goods included in any of the headings of Chapters 84 or 85 are in all cases to be classified in their respective headings, notwithstanding the fact that the position sensors might function as parts of larger instrumentation systems.
proposed: 8543.89.4000, 2.6%; current: 8543.89.9695, 2.6%.
Receipt of Application for "Lever-Rule" Protection for Canon U.S.A., Inc.
CBP has issued a notice announcing that it has received an application from Canon U.S.A., Inc. seeking "Lever-Rule" protection against importations of fax toner cartridges not authorized for sale in the U.S. that bear the "FX" trademark (U.S. Patent & Trademark Office Registration No. 1,721,245; CBP Recordation No. TMK 04-00120).
In the event that CBP determines that the subject fax toner cartridges are physically and materially different from the fax toner cartridges authorized for sale in the U.S., CBP will publish a notice in the CBP Bulletin, pursuant to 19 CFR 133.2(f), indicating that the trademark is entitled to Lever-Rule protection.
(In light of the 1993 court decision in Lever Bros. Co. v. U.S., CBP issued a final rule (T.D. 99-21) in February 1999 that, upon application by the U.S. trademark owner, restricts the importation of certain gray market articles that bear genuine trademarks identical to or substantially indistinguishable from those appearing on articles authorized by the U.S. trademark owner for importation or sale in the U.S., and that thereby create a likelihood of consumer confusion, in circumstances where the gray market articles and those bearing the authorized U.S. trademark are physically and materially different. See ITT's 02/24/99 news, 99022325, for BP summary of T.D. 99-21.)
June 9, 2004 CBP Bulletin (Vol. 38, No. 24) available at http://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2004/vol38_06092004_no_24/