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HQ 964987




October 3, 2001

CLA-2 RR:CR:TE 964987 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4911.91.2020

Port Director
U.S. Customs Service
One Penn Plaza
10th Floor
New York, NY 10119

ATTN: Residual Liquidation and Protest Branch

RE: Classification of Offset Printing Posters under subheading 4911.91.2020, HTSUS; Protest Number 1001-01-100542

Dear Sir:

This is in response to the Application for Further Review of Protest (AFR 1001-01-100542) that you forwarded to our office for review. The protest was timely filed by the law firm of Middleton & Shrull, on behalf of Prolific Art Galleries, Ltd., against the liquidation of certain posters under subheading 4911.91.2020 of the Harmonized Tariff Schedule of the United States (HTSUS). The protest covers 1 entry.

FACTS:

On July 23, 2000, the protestant entered a shipment of posters into the United States from the United Kingdom under subheading 4911.91.4020, HTSUS. On October 5, 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.

During the time frame in question, 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), including the United Kingdom, 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.

Customs liquidated the entry on December 22, 2000, and assessed the 100 percent ad valorem duties. Counsel’s primary argument is that neither the United States Trade Representative (USTR) nor the International Trade Administration (ITA) intended “posters” to be included among the products subject to retaliatory duties. However, this issue and the other arguments raised in the protest are now moot, for the reasons set forth below. Counsel does not, per se, question 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 European Union?

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.

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.

HOLDING:

The protest should be DENIED. 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).

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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