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HQ 967074




July 14, 2004

CLA-2 RR:CR:TE 967074 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 8528.12.9700

Mr. John A. Moscati, Jr.
Watson, Bennett, Colligan, Johnson & Schechter, LLP 600 Fleet Bank Building
12 Fountain Plaza
Buffalo, NY 14202

RE: Claim of Treatment pertaining to the Classification of Set Top Boxes under 8528.12.9200, HTSUS

Dear Mr. Moscati:

This is in response to your request for a grant of consistent treatment to previously accorded substantially identical transactions submitted on behalf of your client Beir Nabala Satellite Communications, Inc. Your client claims two entries imported on February 21, 2002 and March 18, 2003, are entitled to a treatment under 19 U.S.C. §1625(c)(2). The two entries which your client claims are entitled to treatment have not been liquidated to date.

FACTS:

On February 4, 2004, Customs and Border Protection (CBP) published a Proposed Notice in the Customs Bulletin, Vol. 38, No. 6, advising interested parties that it was revoking a treatment previously accorded to set top boxes, as set forth in HQ 966799. The set top boxes were previously classified under subheading 8528.12.9200, Harmonized Tariff Schedule of the United States (HTSUS), which provides for, “Reception apparatus for television, whether or not incorporating radiobroadcast receivers or sound or video recording or reproducing apparatus; video monitors and video projectors: Reception apparatus for television, whether or not incorporating radiobroadcast receivers or sound or video recording or reproducing apparatus: Other: Other: Other: Set top boxes which have a communications function.” The proposed notice also notified interested parties that CBP was revoking any treatment previously accorded by CBP to substantially identical merchandise or any other contrary ruling.

The final Notice and ruling letter were published in the Customs Bulletin on March 31, 2004, Vol. 38, No. 14, reclassifying the set top boxes under subheading

8528.12.9700, HTSUS, which provides for, "Reception apparatus for television, whether or not incorporating radiobroadcast receivers or sound or video recording or reproducing apparatus; video monitors and video projectors: Reception apparatus for television, whether or not incorporating radiobroadcast receivers or sound or video recording or reproducing apparatus: Color: Other: Other: Other: Other."

Your client did not file a claim of treatment during the notice period.

ISSUE:

Whether evidence to substantiate a claim of treatment under 19 U.S.C. §1625(c)(2) for the importation of set top boxes under subheading 8528.12.9200, HTSUS, has been presented.

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 your client were able to substantiate its claim of treatment under 19 U.S.C. §1625(c)(2), it would be entitled to liquidation of the entries under subheading 8528.12.9200, HTSUS, for the 60-day period set forth in the Customs Bulletin, i.e., until May 30, 2004. Merchandise classifiable under that tariff provision is free of duty. Thereafter, the merchandise would be classifiable in accordance with Customs and Border Protection’s notice under subheading 8528.12.9700, HTSUS, which is dutiable at 5% ad valorem.

Section 177.12(c)(1) of the Customs Regulations (19 CFR 177.12(c)(1)) provides that the following rules will apply for purposes of determining whether a treatment was previously accorded by CBP to substantially identical transactions of a person:

(i) There must be evidence to establish that:

(A) There was an actual determination by a Customs officer regarding the facts and issues involved in the claimed treatment;

(B) The Customs officer making the actual determination was responsible for the subject matter on which the determination was made; and

(C) Over a 2-year period immediately preceding the claim of treatment, Customs consistently applied that determination on a national basis as reflected in liquidations of entries or reconciliations or other Customs actions with respect to
all or substantially all of that person's Customs transactions involving materially identical facts and issues.

Section 177(c)(ii) provides that the determination of whether the requisite treatment occurred will be made on a case-by-case basis and will involve an assessment of all relevant factors. In particular, CBP will focus on past transactions to determine whether there was an examination of the merchandise by CBP or the extent to which those transactions were reviewed by CBP. Diminished weight will be given to transactions involving small quantities or values, and no weight to informal entries or transactions processed without examination or CBP officer review.

Section 177.12(c)(2)(iv) of the Customs Regulations, 19 CFR 177.12(c)(iv)), provides that "(t)he evidentiary burden as regards the existence of the previous treatment is on the person claiming the treatment." Section 177.12(c)(iv), further states the following:

The evidence of previous treatment by Customs must include a list of all materially identical transactions by entry number (or other Customs assigned number), the quantity and value of merchandise covered by each transaction (where applicable), the ports of entry, the dates of final action by Customs, and, if known, the name and location of the Customs officer who made the determination on which the claimed treatment is based. In addition, in cases in which an entry is liquidated without any Customs review (for example, the entry is liquidated automatically as entered), the person claiming a previous treatment must be prepared to submit to Customs written or other appropriate evidence of the earlier actual determination of a Customs officer that the person relied on in preparing the entry and that is consistent with the liquidation of the entry.

The information your client has provided up to this point does not substantiate that your client is entitled to a treatment. We note that your client has not identified any entry numbers, ports of entry, dates of final action by CBP, and, if known, the name and location of the CBP officer who made the determination on which the claimed treatment is based and no basis, other than your statement, upon which to verify that the merchandise was identical to that for which a treatment is claimed. We have not been provided with any of the information required by the above section.

In addition, your client has not alleged or provided any evidence that any of the entries were examined by CBP, or that CBP import specialists received samples of the merchandise or entry documents prior to release of that merchandise, and that entries were liquidated in the provision for which treatment is sought.

Your client has not met the evidentiary burden required to substantiate the existence of a treatment claim.

HOLDING:

The claim of treatment under 19 U.S.C. §1625(c)(2) is DENIED.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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