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HQ 086038


December 6, 1989

CLA-2 CO:R:C:G 086038 JMH

CATEGORY: CLASSIFICATION

TARIFF NO.: 9027.20.40

Patrick C. Reed, Esq.
Freeman, Wasserman & Schneider
90 John Street
New York, New York 10038

RE: Request for effective delay of
Headquarters Ruling Letter 082462

Dear Mr. Reed:

This is in response to your request of November 21, 1989, for a delay of the effective date of Headquarters Ruling Letter 082462 ("HQ 082462"), dated November 13, 1989, in accordance with Customs Regulations section 177.9(e)(2), as amended, 54 Fed. Reg. 31511, 31516 (July 31, 1989) (designated as T.D. 89-72, 54 Fed. Reg. 32810 (Aug. 10. 1989) (to be codified as 19 C.F.R. section

FACTS:

HQ 082462 classified certain chromatography and electrophoresis equipment imported by Pharmacia LKB Biotechnology Inc. ("Pharmacia"). The ruling letter determined that chromatography equipment and electrophoresis equipment are dissimilar and the two types of instruments were classified differently. Chromatography equipment was classified within subheading 8421.29.00, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as "filtering and purifying apparatus for liquids..." The electrophoresis equipment was classified within subheading 9027.20.40, HTSUSA, as "instruments and apparatus for chemical or physical analysis...".

You contend that the Customs Service has established a "sufficiently consistent and continuous" treatment of classifying electrophoresis equipment as "filtering and purifying apparatus..." upon which you have "reasonably relied" for future identical transactions. 19 C.F.R. section 177.9(e)(2) (as amended by T.D. 89-74, 54 Fed. Reg. at 31516).

ISSUE:

Whether the Customs Service has established a "sufficiently consistent and continuous" treatment regarding the classification of electrophoresis instruments.

LAW AND ANALYSIS:

The Customs Regulations require that "an affected party must demonstrate to the satisfaction of the Customs Service" that the party has reasonably relied upon the consistent and continuous treatment of merchandise by Customs. 19 C.F.R. 177(e)(2). It is the opinion of this office that you have not demonstrated such treatment to our satisfaction.

The evidence required to establish continuous and consistent treatment includes a listing of all substantially identical transactions by entry number; the quantity and value of the merchandise; the ports of entry; the dates of final action by Customs; and contracts, purchase orders or other documents which indicate the arrangement of future transactions based upon the previous treatment. 19 C.F.R. 177(e)(2). We find your submission lacking of the required evidence.

A listing of stipulated judgments was included in your submission. As you are aware, such judgments are not binding upon Customs' classifications. Furthermore, review of the cases establishes that the only consistent and continuous treatment that may be inferred is for chromatographic equipment, not electrophoresis equipment. These stipulated judgments are consistent with the classification of chromatography instruments in HQ 082462.

In addition, this office finds that there could be no reasonable reliance upon prior treatment of merchandise since the implementation of the Harmonized Tariff Schedule of the United States (HTSUSA) was announced long before the date of its enactment, January 1, 1989. Pharmacia's December 1, 1987, request for a ruling establishes that it was aware of the impending replacement of tariffs and that possible changes in classification could occur. As this ruling request was thirteen months prior to the enactment of the HTSUSA, Pharmacia had sufficient time to prepare for the worst case scenario in the classification of its merchandise.

HOLDING:

Pharmacia has not demonstrated to the satisfaction of the Customs Service that a consistent and continuous treatment of electrophoresis instruments by Customs existed upon which they
reasonably relied. The request for a delay in the effective date of Headquarters Ruling Letter 082462 is denied. November 13, 1989, remains the effective date.

Sincerely,

John Durant, Director
Commercial Rulings Division

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