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HQ W968142




December 7, 2007

CLA-2 RR:CTF:TCM W968142HkP

CATEGORY: CLASSIFICATION

TARIFF NO.: 8518.29.80

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. 2704-05-102242; 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 2704-05-102242, 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”) (2004).

FACTS:

The entries at issue consist of 31 types of loudspeakers not mounted in enclosures (categorized as either woofers, tweeters, midranges, midrange coaxials, or combo speakers), that are sold separately for installation in an automotive audio system. The loudspeakers are identified by SKU as follows:

B1.525C, B1.65C, B1402, B15252, B1572, B1653, B1682, B1693, B3.12.4, B3.12.8, (“Lightning Audio_Bolt” series).

FRC4203. FRC4204. FRC4205, FRC4246, FRC4306, FRC4396, P162S, P1682S, P1692S, P1T (“Rockford Fosgate_Punch” series). M162S (“Rockford Fosgate_Marine” series).

S2.525.2, S4.10.4, S4.12.4, S4.15.4 (“Lightning Audio_Strike” series).

T1462C, T152C, T1572C, T162C, T1682C, T1693C (“Rockford Fosgate_Power” series). These loudspeakers were entered between August 25, and October 27, 2004, 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 July 15 and September 16, 2005.

Rockford claims that the loudspeakers also meet the requirements of subheading 9902.85.20, HTSUSA, a duty free provision, and timely filed a protest on October 13, 2005. 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. 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 (2004)?

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. § 1514(c)(3) (2006)).

Further Review of Protest No. 2704-05-102242 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. The 2004 HTSUSA provision under consideration is as follows:

9002.85.20 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.

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”. However, 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.

It is not in dispute that the loudspeakers meet the terms of subheading 8518.29.80, HTSUSA (2004).

As earlier stated, the loudspeakers at issue were entered between August 25, and October 27, 2004. We find therefore, that at the time of entry the relevant duty suspension provisions of the 2004 tariff had lapsed. We also find that the duty suspension provisions for loudspeakers under the Miscellaneous Trade and Technical Corrections Act of 2004 were not in force at the time of entry. Consequently, we find that the loudspeakers at issue are not entitled to duty free treatment under subheading 9902.85.20, HTSUSA.

The loudspeakers do not meet the terms of the claimed provision. Accordingly, there is no need for us to decide the merits of this application.

HOLDING:

By application of GRI 1 we find that, because of their dates of entry, the subject loudspeakers are not entitled to temporary duty concessions under the provisions of subheading 9902.85.20, HTSUSA (2004).

The loudspeakers at issue are classified in subheading 8518.29.80, HTSUSA.

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny 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, Regulations and Rulings 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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