CLA-2 RR:CR:TE 966701 RH
Port Director
Bureau of Customs and Border Protection
2nd and Chestnut Streets
Room 102
Philadelphia, PA 19106
ATTN: Mr. Dennis Cordisco, Team 171
RE: Classification of Posters under subheading 4911.91.2020, HTSUS; Protest Number 1101-00-100022
Dear Sir:
This is in response to the Application for Further Review of Protest (AFR 1101-00-100022) that you forwarded to our office for review. The protest was timely filed by Barthco International, Inc., on behalf of Ikea Wholesale, Inc., against the liquidation of certain posters under subheading 4911.91.2020 of the Harmonized Tariff Schedule of the United States (HTSUS). The protest covers one entry.
FACTS:
On August 25, 1999, the protestant entered a shipment of posters into the United States from Germany under subheading 4911.91.2020, HTSUS. At the time of entry, merchandise classifiable under subheading 9903.08.11, HTSUS (affecting articles in subheading 4911.91.2020, HTSUS), was subject to 100 percent ad valorem duties imposed on a list of products of certain member states of the European Community (EC), including Germany, 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.
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On October 10, 1999, Customs and Border Protection (CBP) issued a CF 29 (Notice of Action) advising the protestant that the merchandise was subject to a rate advance for the 100 percent ad valorem duties. CBP liquidated the entry on October 19, 2000.
The protestant states that the imposition of retaliatory duties is capricious and arbitrary. However, the issues raised in the protest are now moot, for the reasons set forth below. We note that the protestant does not dispute the classification of posters under subheading 4911.91.2020, HTSUS, as proper.
ISSUE:
At the time of entry was the merchandise classifiable in subheading 4911.91.2020, HTSUS, subject to 100 percent retaliatory duties imposed by the United States against the EC?
LAW AND ANALYSIS:
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. See Federal Register, Vol. 66, No. 130, copy attached.
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 CBP. This action by the USTR effectively voids the sanctions against lithographs ab initio.
HOLDING:
The protest should be GRANTED. The merchandise in question is classifiable under subheading 4911.91.2020, HTSUS, at the rate of 4¢/kg. However, in accordance with the USTR notice, 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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A copy of this decision should be attached to the Form 19, which is sent to the protestant. 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 the decision.
No later than sixty days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on
the CBP Home Page on the World Wide Web at www.cpb.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon
Director, Commercial Rulings Division
Enclosure