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HQ H016414




December 7, 2007

CLA-2 RR:CTF:TCM H016414 HkP

CATEGORY: CLASSIFICATION

TARIFF NO.: 8518.29.80
9902.85.20

Port Director
Port of Los Angeles/Long Beach
U.S. Customs and Border Protection
310 E. Ocean Blvd.
Suite 1400
Long Beach, CA 90802

RE: Application for Further Review of Protest No. 2704-06-100615; Loudspeakers Not Mounted in Enclosures; Duty-Free Treatment

Dear Port Director:

This is our decision regarding the Application for Further Review (“AFR”) of Protest Number 2704-06-100615, timely filed by counsel on behalf of Rockford Corporation (“Rockford”) concerning the classification of loudspeakers not mounted in enclosures, under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) (2005).

FACTS:

The entries at issue consist of 22 types of loudspeakers not mounted in enclosures (categorized as woofers or coaxials) that are sold separately for installation in an automotive or marine audio system. The loudspeakers are identified by SKU and series as follows:

B3.12.4, B.3.12.8 (Lightning Audio_Bolt)

M162S (Rockford Fosgate_Marine)

P142C, P1462C, P152C, P1572C, P162 C, P163C, P1683C, P1692 C, P1694C (Rockford Fosgate_Punch)

P3.10.4, P3.12.4 (Lightning Audio_Promo)

S4.10.4, S4.12.4, S4.12.8, S4.15.4 (Lightning Audio_Strike) T152C, T162C, T1682C, T1692C (Rockford Fosgate_Power)

The loudspeakers were entered between December 29, 2004, and April 9, 2005, as parts of larger shipments of other loudspeakers which are not at issue, and classified in subheading 8518.29.80, HTSUSA. Duty was paid at the rate of 4.9% ad valorem. The entries were liquidated between January 6, and February 17, 2006.

Rockford claims that the loudspeakers meet the requirements of subheading 9902.85.20, HTSUSA, a duty free provision, and timely filed a protest on March 29, 2006. In support of this claim, Rockford submitted test data for the loudspeakers, information on the procedure used to test the loudspeakers, product information and other related documents from an independent laboratory. Rockford asserts that the classification issues raised in the protest involve specific questions of law and fact, regarding whether the documents supporting the claim of duty free treatment are legally sufficient to demonstrate that the criteria of subheading 9902.85.20, HTSUSA, has been met. Rockford also seeks a refund of the duty paid.

ISSUE:

Are the loudspeakers entitled to duty free treatment under the provisions of subheading 9902.85.20, HTSUSA?

LAW AND ANALYSIS:

Initially, we note that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 90 days of liquidation of the first entry for entries made before December 18, 2004, and within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C.

Further Review of Protest No. 2704-06-100615 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves specific questions of law or fact regarding whether alleged facts supported by documentation are legally sufficient for duty free treatment for this merchandise.

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. GRI 6 provides, in relevant part, that the classification of goods in a subheading shall be determined according to the terms of those subheadings and any related subheading notes.

It is not in dispute that the loudspeakers meet the terms of subheading 8518.29.80, HTSUSA.

The HTSUSA provision under consideration is as follows:

9902.85.20 Loudspeakers not mounted in their enclosures (provided for in subheading 8518.29.80), the foregoing which meet a performance standard of not more than 1.5 dB for the average level of 3 or more octave bands, when such loudspeakers are tested in a reverberant chamber.

In the 2004 version of the HTSUS, the effective period of this provision is stated as being: “On or before 12/31/2001.” Notwithstanding the foregoing, section 1332 of the Miscellaneous Trade and Technical Corrections Act of 2004 (Pub.L. 108-429, December 3, 2004) provides for temporary duty suspension for loudspeakers that meet the requirements of subheading 9902.85.20, HTSUSA, “on or before 12/31/2006”. Section 2108 of the Act provides that this amendment to the tariff applies to merchandise entered, or withdrawn from warehouse for consumption, on or after the 15th day of the date of enactment of the Act, that is, December 18, 2004. In the 2005 version of the HTSUS, the effective period of subheading 9902.85.20 is stated as being: “On or before 12/31/2006.”

Protestant tested a representative sample of the loudspeakers according to recognized industry standards relevant to reverberant chamber testing of unenclosed loudspeakers, namely, IEEE Standard 219-1975, IEEE Recommended Practice for Loudspeaker Measurements and International Electrochemical Commission (“IEC”) Standard 60268-5 (2003-05). Specifically, the loudspeakers were tested in a reverberant test chamber built to ISO 3741 specifications (per IEC 60268-5, section 3.1). In addition, the testing protocols conformed to those required by IEC 60268-5. The test results submitted to CBP show that the samples meet the performance standard of not more than 1.5 dB for the average level of 3 or more octave bands when such loudspeakers are tested in a reverberant chamber.

In addition, as earlier stated, the loudspeakers at issue were entered between December 29, 2004, and April 9, 2005. At the times of entry, the relevant duty suspension provision was in force.

Based on all of the foregoing, we find that the loudspeakers at issue are entitled to duty free treatment under subheading 9902.85.20, HTSUSA.

HOLDING:

Based on the test results submitted by Rockford to CBP, we find that the loudspeakers at issue meet a performance standard of not more than 1.5 decibels for the average level of 3 or more octave bands, as verified by testing done in a reverberant chamber performed according to recognized industry standards. In addition, the loudspeakers are not mounted in enclosures. Accordingly, we find that the loudspeakers at issue fulfill the requirements of subheading 9902.85.20, HTSUSA, which provides for: “Loudspeakers not mounted in their enclosures (provided for in subheading 8518.29.80), the foregoing which meet a performance standard of not more than 1.5 dB for the average level of 3 or more octave bands, when such loudspeakers are tested in a reverberant chamber.” The column one, general rate of duty is free, on or before December 31, 2006.

You are instructed to allow the protest in full. In accordance with Section IV of the Customs Protest/Petition Processing Handbook (CIS HB, January 2002, pp.18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.

No later than 60 days from the date of this letter, the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP homepage on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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