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HQ 965079




July 25, 2001

CLA-2 RR:CR:TE 965079 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4911.92.2020

Port Director
U.S. Customs Service
1500 Port Boulevard
Miami, FL 33132

RE: Classification of Offset Printing Posters under subheading 4911.91.2020, HTSUS; Protest Number 5201-01-100252

Dear Sir:

This is in response to the Application for Further Review of Protest (AFR) 5201-01-100252 that you forwarded to our office for review. The protest was timely filed by the law firm of Sandler, Travis & Rosenberg, P.A., on behalf of Safari, Ltd., against the liquidation of certain offset printing posters under subheading 4911.91.2020 of the Harmonized Tariff Schedule of the United States (HTSUS). The protest covers 1 entry. The protestant claims that its posters are classifiable under subheading 4911.91.4020 of the HTSUS.

FACTS:

On April 7, 2000, the protestant entered a shipment of posters into the United States from Italy under subheading 4911.91.4020, HTSUS. On October 23, 2000, Customs issued a CF 29 (Notice of Action) advising the protestant that the merchandise would be classified under subheading 4911.91.2020, HTSUS, resulting in a rate advance. Customs liquidated the entry on December 29, 2000.

The protestant list three reasons why classification under subheading 4911.91.4020, HTSUS, is proper:

There is a uniform and established practice of classifying offset printing posters under subheading 4911.91.4020, HTSUS, and Customs has not, as required by 19 U.S.C. §1315(d), published a notice in the Federal Register revoking this practice.

Even if Customs were to find that no practice exists, Customs cannot retroactively apply its 19 U.S.C. §1625(c) revocation notice to entries that occurred prior to the effective date of that notice, which in this case is December 17, 2000. The entry in question occurred on April 17, 2000. The proposal itself was not published until August of 2000.

The offset printing posters in question are not lithographs and, therefore, cannot be classified in subheading 4911.91.2020, HTSUS.

ISSUES:

Is there is a uniform and established practice of classifying offset printing posters under subheading 4911.91.4020, HTSUS?

Has the protestant established a claim of treatment under 19 U.S.C. §1625(c)(2), thereby entitling it to receive the 60-day delayed effective date set forth in the Customs notice?

3. What is the correct classification of the imported posters?

LAW AND ANALYSIS:

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.

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. Safari, Ltd. did not file a claim of treatment during the notice period.

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. Thus, under the notice if the protestant were able to substantiate its claim of treatment under 19 U.S.C. §1625(c)(2), it would be entitled to continue to enter and classify its merchandise under subheading 4911.91.4020, HTSUS, during the 60-day delayed effective date, 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.

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.

In light of the USTR actions, if the protestant’s claim were granted it would result in the difference between the two duty rates (i.e., 4¢/kg. under subheading 4911.91.2020, HTSUS, or 0.9 percent ad valorem under subheading 4911.91.4020, HTSUS) being either refunded to the protestant or collected from the protestant.

On June 4, 2001, our office sent a letter to Mr. Bernard Rubel of Safari, Ltd., in reply to an inquiry on his behalf from Senator Bob Graham, outlining all the information he needed to submit in order to substantiate a claim of treatment under 19 U.S.C. §1625(c)(2), i.e., a list of every entry of the merchandise, both liquidated and unliquidated up to the point where he was advised to change the classification to that asserted by Customs, the entry number, port of entry, tariff classification, dollar value, volume of the merchandise and a list of any entries that were subject to examination by Customs.

The information submitted by the protestant does not include all the information requested and is not sufficient to perfect a claim of treatment under 19 U.S.C. §1625(c)(2). The protestant claims that it has been importing approximately 60,000 posters from Italy each year since 1990, and that prior to October 23, Customs had never notified it that the classification was incorrect. To support this claim, the protestant submits a list of entries from 1998 through 2000. The list includes entry numbers and dollar values and indicates that twenty-six entries have been liquidated and seventeen entries remain unliquidated. No other information was provided.

We also find the protestant’s claim that there is a uniform and established practice of classifying offset printing posters under subheading 4911.91.4020, HTSUS, without merit. Long-continued administrative practice must be shown by positive evidence. It is not established by the rulings of one to two collectors as to a few shipments or as to some related substance or a different quality or as to a period subsequent to the date of importation. United States v. H. Reeve Angel & Co., Inc., 33 CCPA 114, C.A.D. 324 (1946), cert. den. 328 U.S. 835, 66 SCR 980, 90 L. Ed. 1611 (1946). In our review of similar cases, it is clear that Customs has not uniformly classified posters printed by lithography or offset
lithography in subheading 4911.91.4020, HTSUS. On July 17, 2001, Customs published a Notice of Proposed Rulemaking in the Federal Register, 66 FR 37370, setting forth proposed amendments to Part 177 of the Customs Regulations. Part 177.22(a)(2), of the proposed regulations set forth criteria for establishing a uniform practice. The following quoted provision from that notice codifies what has been Customs administrative practice:

The practice must involve 100 percent uniform treatment accorded by Customs through liquidations performed at multiple ports over an extended period of time. For purposes of this paragraph, “treatment accorded by Customs” means an actual review of entries and therefore does not include cases in which liquidation of an entry occurred without the direct, active involvement of Customs (for example, when liquidation took place by operation of law or involved bypass or automatic liquidation or similar procedures).

Finally, with regard to the classification issue the protestant states that the posters in questions are printed by ink transfer from a film cylinder to a rubber cylinder and then onto paper. The protestant states that this is an “offset printing method” not “offset lithography.”

The distinction between lithography made by hand by an artist and lithography or offset lithography was set forth in detail in the Customs Bulletin notice, referenced above (HQ 964035). The method described by the protestant for printing its posters (by ink transfer from a film cylinder to a rubber cylinder and then onto paper) was specifically described in the notice as a lithographic process under subheading 4911.91.2020, HTSUS. Moreover, a sample of the protestant’s poster (a sky chart) was sent to a Customs laboratory for analysis prior to liquidation, which found that the poster was printed by a lithographic process [under subheading 4911.91.2020, HTSUS].

HOLDING:

The protest should be DENIED. The protestant has not established a treatment under 19 U.S.C. §1625(c)(2) or a uniform practice under 19 U.S.C. §1315(d).

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).

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.

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

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