CLA-2 RR:CR:TE 964858 RH
Port Director
U.S. Customs Service
10 Causeway Street
Boston, MA 02222
RE: Claim of Treatment pertaining to the Classification of Offset Printing
Posters under 4911.91.4020, HTSUS; Protest Number 0401-00-100313
Dear Sir:
This is in response to the Application for Further Review of Protest (AFR) 0401-00-100313 that you forwarded to our office for review. The protest was timely filed by Mr. Paul Kennedy of Global Prints against the liquidation of certain art prints and offset printing posters under subheading 4911.91.2020 of the Harmonized Tariff Schedule of the United States (HTSUS). The protest covers 5 entries. Mr. Kennedy claims that his company is entitled to a treatment under 19 U.S.C. §1625(c)(2) with respect to the classification of his prints and posters.
FACTS:
On August 16, 2000, Customs published a Proposed Notice in the Customs Bulletin, Vol. 34, No. 33, advising interested parties that it is revoking a treatment previously accorded to Clover Editions, as set forth in HQ 964035, of classifying merchandise described as offset printing posters under subheading 4911.91.4020, HTSUS, which provides for, among other things, posters other than lithograph on paper, and that it is revoking any other treatment previously accorded by Customs to substantially identical merchandise or any contrary ruling.
The final Notice and ruling letter were published in the Customs Bulletin on October 18, 2000, Vol. 34, No. 41 & 42, reclassifying the offset printing posters under subheading 4911.91.2020, HTSUS, which provides for, among other things, lithograph on paper or paperboard.
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During the time frame set forth in the Customs notice, merchandise classifiable under subheading 9903.08.11, HTSUS (affecting articles in subheading 4911.91.2020, HTSUS (lithographs)), was subject to 100 percent ad valorem duties imposed on a list of products of certain member states of the European Community (EC) as a result of the EC’s failure to implement the recommendations and ruling of the World Trade Organization (WTO) Dispute Settlement Body concerning the EC’s regime for the importation, sale and distribution of bananas.
Mr. Kennedy did not file a claim of treatment during the notice period.
ISSUE:
Has the protestant presented evidence to substantiate a claim of treatment under 19 U.S.C. §1625(c)(2) for the importation of art prints and posters under subheading 4911.91.4020, HTSUS?
LAW AND ANALYSIS:
Under section 625 of the Tariff Act of 1930, as amended, 19 U.S.C. §1625 (1994), a proposed interpretive ruling or decision which would –
modify (other than to correct a clerical error) or revoke a prior interpretive ruling or decision which has been in effect for at least 60 days ; or
have the effect of modifying the treatment previously accorded by the Customs Service to substantially identical transactions;
must be published in the Customs Bulletin and will become effective 60 days after the date of its publication. If Mr. Kennedy were able to substantiate his claim of treatment under 19 U.S.C. §1625(c)(2), he would be entitled to reliquidation of the entries under protest under subheading 4911.91.4020, HTSUS, for the 60-day period set forth in the Customs Bulletin, i.e., until December 18, 2000. Merchandise classifiable under that tariff provision is dutiable at the rate of 0.9 percent ad valorem. Thereafter, the merchandise would be classifiable in accordance with Customs notice under subheading 4911.91.2020, HTSUS, which is dutiable at 4¢/kg.
The evidence submitted by Mr. Kennedy, however, does not establish a claim of treatment. Mr. Kennedy claims that he has consistently entered his art prints and posters under subheading 4911.91.4020, HTSUS, and that prior to the change in classification set forth in the Customs Bulletin his merchandise was subject to intensive examination by Customs, without change in classification.
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On April 11, 2001, our office sent Mr. Kennedy a letter detailing the information he needed to submit in order to perfect his claim of treatment, i.e., a list of every entry up to the point where he was advised to change the classification to that asserted by Customs, entry numbers, ports of entry, tariff classification, dollar values, volume of the merchandise, and entries subject to examination. To date, we have not received this information. The two entries mentioned by Mr. Kennedy that were examined by Customs were part of an inspector audit on paperless entries and not to verify classification. Customs import specialists did not received samples of the merchandise or entry documents prior to release of that merchandise. It appears that Mr. Kennedy’s merchandise has been on by-pass status and, unlike the merchandise in HQ 964035 which was examined at least 6 times by Customs, we have no records of any examinations of Mr. Kennedy’s shipments for the purpose of verifying classification.
In any event, on July 6, 2001, the Office of the United States Trade Representative (USTR) filed a Notice of termination of action, monitoring, and request for public comments, stating that the EC is taking satisfactory measures to grant the rights of the United States under the WTO Agreement, and proposing to terminate the 100 percent ad valorem duties on the list of EC products, including lithographs, and to monitor the EC’s compliance.
The termination of increased duties is effective with respect to articles entered, or withdrawn from warehouse, for consumption, on or after July 1, 2001, except that the termination of increased duties on subheading 4911.91.2020, HTSUS, is effective with respect to articles entered, or withdrawn from warehouse, for consumption, on or after March 3, 1999, for which unliquidated entries or entries subject to timely protest are pending before Customs. This action by the USTR effectively voids the sanctions against lithographs ab initio. A copy of the Federal Register notice is attached.
Accordingly, Mr. Kennedy is entitled to a refund of the 100 percent duties paid (less the amount due as a result of classification under subheading 4911.91.2020, HTSUS), notwithstanding denial of the protest. Instructions to the field on procedures concerning the refund of duties for entries subject to timely protest, as well as for unliquidated entries, will be issued shortly.
HOLDING:
The protestant’s claim of treatment under 19 U.S.C. §1625(c)(2) should be DENIED. The protestant is entitled to obtain a refund of the 100 percent duties paid (less the amount due as a result of classification under subheading 4911.91.2020, HTSUS).
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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 or entries in accordance with the decision must be accomplished prior to mailing 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.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division
Enclosure