HQ 086038: Request for effective delay of Headquarters Ruling Letter 082462

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 086038

                        December 6, 1989


CLA-2 CO:R:C:G  086038  JMH

CATEGORY:  Classification

TARIFF NO.:  9027.20.40

Patrick C. Reed, Esq.
Freeman, Wasserman & Schneider
90 John Street
New York, New York  10038

RE:  Request for effective delay of
     Headquarters Ruling Letter 082462

Dear Mr. Reed:

     This is in response to your request of November 21, 1989,
for a delay of the effective date of Headquarters Ruling Letter
082462 ("HQ 082462"), dated November 13, 1989, in accordance with
Customs Regulations section 177.9(e)(2), as amended, 54 Fed. Reg.
31511, 31516 (July 31, 1989) (designated as T.D. 89-72, 54 Fed.
Reg. 32810 (Aug. 10. 1989) (to be codified as 19 C.F.R. section
177.9(e)(2)).

FACTS:

     HQ 082462 classified certain chromatography and
electrophoresis equipment imported by Pharmacia LKB
Biotechnology Inc. ("Pharmacia").  The ruling letter determined
that chromatography equipment and electrophoresis equipment are
dissimilar and the two types of instruments were classified
differently.  Chromatography equipment was classified within
subheading 8421.29.00, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), as "filtering and purifying apparatus
for liquids..."  The electrophoresis equipment was classified
within subheading 9027.20.40, HTSUSA, as "instruments and
apparatus for chemical or physical analysis...".

     You contend that the Customs Service has established a
"sufficiently consistent and continuous" treatment of classifying
electrophoresis equipment as "filtering and purifying
apparatus..." upon which you have "reasonably relied" for future
identical transactions.  19 C.F.R. section 177.9(e)(2) (as
amended by T.D. 89-74, 54 Fed. Reg. at 31516).

                               -2-


ISSUE:

     Whether the Customs Service has established a "sufficiently
consistent and continuous" treatment regarding the classification
of electrophoresis instruments.

LAW AND ANALYSIS:

     The Customs Regulations require that "an affected party must
demonstrate to the satisfaction of the Customs Service"  that
the party has reasonably relied upon the consistent and
continuous treatment of merchandise by Customs.  19 C.F.R.
177(e)(2).  It is the opinion of this office that you have not
demonstrated such treatment to our satisfaction.

     The evidence required to establish continuous and consistent
treatment includes a listing of all substantially identical
transactions by entry number; the quantity and value of the
merchandise; the ports of entry; the dates of final action by
Customs; and contracts, purchase orders or other documents which
indicate the arrangement of future transactions based upon the
previous treatment.  19 C.F.R. 177(e)(2).  We find your
submission lacking of the required evidence.

     A listing of stipulated judgments was included in your
submission.  As you are aware, such judgments are not binding
upon Customs' classifications.  Furthermore, review of the cases
establishes that the only consistent and continuous treatment
that may be inferred is for chromatographic equipment, not
electrophoresis equipment.  These stipulated judgments are
consistent with the classification of chromatography instruments
in HQ 082462.

     In addition, this office finds that there could be no
reasonable reliance upon prior treatment of merchandise since the
implementation of the Harmonized Tariff Schedule of the United
States (HTSUSA) was announced long before the date of its
enactment, January 1, 1989.  Pharmacia's December 1, 1987,
request for a ruling establishes that it was aware of the
impending replacement of tariffs and that possible changes in
classification could occur.  As this ruling request was thirteen
months prior to the enactment of the HTSUSA, Pharmacia had
sufficient time to prepare for the worst case scenario in the
classification of its merchandise.

HOLDING:

     Pharmacia has not demonstrated to the satisfaction of the
Customs Service that a consistent and continuous treatment of
electrophoresis instruments by Customs existed upon which they

                               -3-


reasonably relied.  The request for a delay in the effective date
of Headquarters Ruling Letter 082462 is denied.  November 13,
1989, remains the effective date.

                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division