Bureau of Customs and Border Protection

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Bureau of Customs and

Border Protection

CBP Decisions

ADM–9–03:OT:RR:RD:BS

H007121 STB

19 CFR Part 123

CBP Dec. 07–25

Advance Electronic Presentation of Cargo Information for

Truck Carriers Required to be Transmitted Through ACE

Truck Manifest at Ports in the States of Idaho and Montana

AGENCY: Customs and Border Protection, Department of Home-

land Security.

ACTION: Final Rule.

SUMMARY: Pursuant to section 343(a) of the Trade Act of 2002 and

implementing regulations, truck carriers and other eligible parties

are required to transmit advance electronic truck cargo information

to U.S. Customs and Border Protection (CBP) through a CBP-

approved electronic data interchange. In a previous document, CBP

designated the Automated Commercial Environment (ACE) Truck

Manifest System as the approved interchange and announced that

the requirement that advance electronic cargo information be trans-

mitted through ACE would be phased in by groups of ports of entry.

This document announces that at all land border ports in Idaho and

Montana truck carriers will be required to file electronic manifests

through the ACE Truck Manifest System.

DATES: Trucks entering the United States through land border

ports of entry in the states of Idaho and Montana will be required to

transmit the advance information through the ACE Truck Manifest

system effective August 6, 2007.

FOR FURTHER INFORMATION CONTACT: Mr. James

Swanson, via e-mail at [email protected].

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SUPPLEMENTARY INFORMATION:

Background

Section 343(a) of the Trade Act of 2002, as amended (the Act; 19

U.S.C. 2071 note), required that CBP promulgate regulations provid-

ing for the mandatory transmission of electronic cargo information

by way of a CBP-approved electronic data interchange (EDI) system

before the cargo is brought into or departs the United States by any

mode of commercial transportation (sea, air, rail or truck). The cargo

information required is that which is reasonably necessary to enable

high-risk shipments to be identified for purposes of ensuring cargo

safety and security and preventing smuggling pursuant to the laws

enforced and administered by CBP.

On December 5, 2003, CBP published in the Federal Register

(68 FR 68140) a final rule to effectuate the provisions of the Act. In

particular, a new section 123.92 (19 CFR 123.92) was added to the

regulations to implement the inbound truck cargo provisions. Sec-

tion 123.92 describes the general requirement that, in the case of

any inbound truck required to report its arrival under

section123.1(b), if the truck will have commercial cargo aboard, CBP

must electronically receive certain information regarding that cargo

through a CBP-approved EDI system no later than 1 hour prior to

the carrier’s reaching the first port of arrival in the United States.

For truck carriers arriving with shipments qualified for clearance

under the FAST (Free and Secure Trade) program, section 123.92

provides that CBP must electronically receive such cargo informa-

tion through the CBP-approved EDI system no later than 30 min-

utes prior to the carrier’s reaching the first port of arrival in the

United States.

ACE Truck Manifest Test

On September 13, 2004, CBP published a notice in the Federal

Truck Carrier Accounts to transmit electronic manifest data for in-

bound cargo through ACE, with any such transmissions automati-

cally complying with advance cargo information requirements as

provided in section 343(a) of the Trade Act of 2002. Truck Carrier Ac-

counts participating in the test were given the ability to electroni-

cally transmit the truck manifest data and obtain release of their

cargo, crew, conveyances, and equipment via the ACE Portal or elec-

tronic data interchange messaging.

A series of notices announced additional deployments of the test,

with deployment sites being phased in as clusters. Clusters were an-

nounced in the following notices published in the Federal Register:

70 FR 30964 (May 31, 2005); 70 FR 43892 (July 29, 2005); 70 FR

60096 (October 14, 2005); 71 FR 3875 (January 24, 2006); 71 FR

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23941 (April 25, 2006); 71 FR 42103 (July 25, 2006), 71 FR 77404

(December 26, 2006); 72 FR 7058 (February 14, 2007); and 72 FR

14127 (March 26, 2007).

CBP continues to test ACE at various ports. CBP will continue, as

necessary, to announce in subsequent notices in the Federal Regis-

ter the deployment of the ACE truck manifest system test at addi-

tional ports.

Designation of ACE Truck Manifest System as the Approved

Data Interchange System

In a notice published October 27, 2006 (71 FR 62922), CBP desig-

nated the Automated Commercial Environment (ACE) Truck Mani-

fest System as the approved EDI for the transmission of required

data and announced that the requirement that advance electronic

cargo information be transmitted through ACE would be phased in

by groups of ports of entry.

ACE will be phased in as the required transmission system at

some ports even while it is still being tested at other ports. However,

the use of ACE to transmit advance electronic truck cargo informa-

tion will not be required in any port in which CBP has not first con-

ducted the test.

The October 27, 2006, document identified all land border ports in

the states of Washington and Arizona and the ports of Pembina,

Neche, Walhalla, Maida, Hannah, Sarles, and Hansboro in North

Dakota as the first group of ports where use of the ACE Truck Mani-

fest System is mandated. Subsequently, CBP announced on January

19, 2007 (72 FR 2435) that, after 90 days notice, the use of the ACE

Truck Manifest System will be mandatory at all land border ports in

the states of California, Texas and New Mexico. On February 23,

2007 (72 FR 8109), CBP announced that, after 90 days notice, the

ACE Truck Manifest System will be mandatory at all land border

ports in Michigan and New York. On April 13, 2007 (72 FR 18574),

CBP announced that after 90 days notice at all land border ports in

Vermont and New Hampshire, and at the land border ports in North

Dakota in which ACE had not been required, the ACE Truck Mani-

fest System will be mandatory.

ACE Mandated at Land Border Ports of Entry in

Idaho and Montana

Applicable regulations (19 CFR 123.92(e)) require CBP, 90 days

prior to mandating advance electronic information at a port of entry,

to publish notice in the Federal Register informing affected carri-

ers that the EDI system is in place and fully operational. Accord-

ingly, CBP is announcing in this document that, effective 90 days

from the date of publication of this notice, truck carriers entering the

United States through land border ports of entry in the states of

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Idaho and Montana will be required to present advance electronic

cargo information regarding truck cargo through the ACE Truck

Manifest System.

Although other systems that have been deemed acceptable by CBP

for transmitting advance truck manifest data will continue to oper-

ate and may still be used in the normal course of business for pur-

poses other than transmitting advance truck manifest data, use of

systems other than ACE will no longer satisfy advance electronic

cargo information requirements at the ports of entry announced in

this document as of August 6, 2007.

Compliance Sequence

CBP will be publishing subsequent notices in the Federal Regis-

ter as it phases in the requirement that truck carriers utilize the

ACE system to present advance electronic truck cargo information at

other ports. ACE will be phased in as the mandatory EDI system at

the ports identified below in the sequential order in which they are

listed. Although further changes to this order are not currently an-

ticipated, CBP will state in future notices if changes do occur. In any

event, as mandatory ACE is phased in at these remaining ports,

CBP will always provide 90 days’ notice through publication in the

Federal Register prior to requiring the use of ACE for the trans-

mission of advance electronic truck cargo information at a particular

group of ports.

The remaining ports at which the mandatory use of ACE will be

phased in, listed in sequential order, are as follows:

1. All land border ports in the state of Maine.

2. All land border ports in the states of Alaska and Minnesota.

Dated: May 2, 2007

EBORAH J. SPERO,

Acting Commissioner,

Customs and Border Protection.

[Published in the Federal Register, May 8, 2007 (72 FR 25965)]

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General Notices

9111–14

Notice of Revocation of Customs Broker License

AGENCY: Bureau of Customs and Border Protection, U.S. Depart-

ment of Homeland Security

ACTION: General Notice

SUMMARY: Pursuant to section 641 of the Tariff Act of 1930, as

amended, (19 USC 1641) and the Customs Regulations

(19 CFR 111.51), the following Customs broker license

is canceled with prejudice.

Name

License # Issuing Port

Rosa E. Garcia 20053 Laredo

DATED: April 27, 2007

ANIEL BALDWIN,

Assistant Commissioner,

Office of International Trade.

[Published in the Federal Register, May 8, 2007 (72 FR 26200)]

DEPARTMENT OF HOMELAND SECURITY,

FFICE OF THE COMMISSIONER OF CUSTOMS.

Washington, DC, May 9, 2007

The following documents of the Bureau of Customs and Border

Protection (‘‘CBP’’), Office of Regulations and Rulings, have been de-

termined to be of sufficient interest to the public and CBP field of-

fices to merit publication in the CUSTOMS BULLETIN.

ANDRA L. BELL,

Executive Director,

Regulations and Rulings Office of Trade.

PROPOSED MODIFICATION OF RULING LETTERS AND

REVOCATION OF TREATMENT RELATING TO THE

TARIFF CLASSIFICATION OF CERTAIN CHRISTMAS

GARLANDS

AGENCY: Bureau of Customs and Border Protection; Department

of Homeland Security.

BUREAU OF CUSTOMS AND BORDER PROTECTION

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ACTION: Notice of proposed modification of two tariff classification

ruling letters and revocation of treatment relating to the classifica-

tion of certain Christmas garlands.

SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19

U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs

Modernization) of the North American Free Trade Agreement Imple-

mentation Act (Pub. L. 103–182, 107 Stat. 2057), this notice advises

interested parties that Customs and Border Protection (CBP) in-

tends to modify two ruling letters relating to the tariff classification

of a certain ‘‘Christmas Banner Garland’’ and a certain ‘‘Christmas

Basket Garland’’ under the Harmonized Tariff Schedule of the

United States (HTSUS). CBP also proposes to revoke any treatment

previously accorded by it to substantially identical transactions.

Comments are invited on the correctness of the intended actions.

DATE: Comments must be received on or before June 22, 2007.

ADDRESS: Written comments are to be addressed to Customs and

Border Protection, Office of International Trade, Regulations and

Rulings, Attention: Commercial Trade and Regulations Branch, 1300

Pennsylvania Avenue, N.W., Washington, D.C. 20229. Submitted

comments may be inspected at Customs and Border Protection, 799

9th Street N.W., Washington, D.C. during regular business hours.

Arrangements to inspect submitted comments should be made in ad-

vance by calling Mr. Joseph Clark at (202) 572–8768.

FOR FURTHER INFORMATION CONTACT: Herminio M.

Castro, Tariff Classification and Marking Branch: (202) 572-8749

SUPPLEMENTARY INFORMATION:

BACKGROUND

On December 8, 1993, Title VI, (Customs Modernization), of the

North American Free Trade Agreement Implementation Act (Pub. L.

103–182, 107 Stat. 2057) (hereinafter ‘‘Title VI’’), became effective.

Title VI amended many sections of the Tariff Act of 1930, as

amended, and related laws. Two new concepts which emerge from

the law are ‘‘informed compliance’’ and ‘‘shared responsibility.’’

These concepts are premised on the idea that in order to maximize

voluntary compliance with customs laws and regulations, the trade

community needs to be clearly and completely informed of its legal

obligations. Accordingly, the law imposes a greater obligation on

CBP to provide the public with improved information concerning the

trade community’s responsibilities and rights under the customs and

related laws. In addition, both the trade and CBP share responsibil-

ity in carrying out import requirements. For example, under section

484 of the Tariff Act of 1930, as amended (19 U.S.C. §1484), the im-

porter of record is responsible for using reasonable care to enter,

classify and value imported merchandise, and provide any other in-

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formation necessary to enable CBP to properly assess duties, collect

accurate statistics and determine whether any other applicable legal

requirement is met.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.

1625(c)(1)), as amended by section 623 of Title VI, this notice advises

interested parties that CBP intends to modify two ruling letters per-

taining to the tariff classification of a certain ‘‘Christmas Banner

Garland’’ and a certain ‘‘Christmas Basket Garland,’’ the latter re-

sembling a sprig. Although in this notice, CBP is specifically refer-

ring to the modification of New York Ruling Letter (‘‘NY’’) K88100,

dated August 5, 2004, (Attachment A), and NY K88101, also dated

August 5, 2004, (Attachment B), this notice covers any rulings on

this merchandise which may exist but have not been specifically

identified. CBP has undertaken reasonable efforts to search existing

databases for rulings in addition to the ones identified. No further

rulings have been found. Any party who has received an interpretive

ruling or decision (i.e., a ruling letter, internal advice memorandum

or decision or protest review decision) on the merchandise subject to

this notice should advise CBP during this notice period.

Similarly, pursuant to section 625(c)(2), Tariff Act of 1930 (19

U.S.C. 1625(c)(2)), as amended by section 623 of Title VI, CBP in-

tends to revoke any treatment previously accorded by CBP to sub-

stantially identical transactions. Any person involved in substan-

tially identical transactions should advise CBP during this notice

period. An importer’s failure to advise CBP of substantially identical

transactions or of a specific ruling not identified in this notice, may

raise issues of reasonable care on the part of the importer or its

agents for importations of merchandise subsequent to the effective

date of the final decision on this notice.

In NY K88100, CBP determined that the subject ‘‘Christmas Ban-

ner Garland,’’ was classifiable under subheading 6702.90.6500,

HTSUS. Similarly, in NY K88101, CBP determined that the subject

‘‘Christmas Basket Garland,’’ which resembles a sprig, was classifi-

able under subheading 6702.90.6500, HTSUS. Based upon our

analysis of festive articles of heading 9505, HTSUS, we have deter-

mined that although NY K88100 and NY K88101 correctly classified

the subject merchandise under subheading 6702.90.6500, HTSUS,

their reasoning needs to be modified.

Pursuant to 19 U.S.C. 1625(c)(1), CBP intends to modify NY

K88100, NY K88101 and any other ruling not specifically identified,

to reflect the proper classification of the ‘‘Christmas Banner Gar-

land’’ and the ‘‘Christmas Basket Garland’’ according to the analysis

contained in proposed Headquarters Ruling Letter (‘‘HQ’’) W967854,

set forth as Attachment C to this document, and HQ W967855, set

forth as Attachment D to this document. Additionally, pursuant to 19

U.S.C. 1625(c)(2), CBP intends to revoke any treatment previously

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accorded by CBP to substantially identical transactions. Before tak-

ing this action, consideration will be given to any written comments

timely received.

DATED: May 2, 2007

AIL A. HAMILL for MYLES B. HARMON,

Director,

Commercial and Trade Facilitation Division.

Attachments

[ATTACHMENT A]

DEPARTMENT OF HOMELAND SECURITY.

UREAU OF CUSTOMS AND BORDER PROTECTION,

NY K88100

August 5, 2004 CLA–2–67:RR:NC:SP:225 K88100

CATEGORY: Classification

TARIFF NO. 6702.90.6500

S.PAMELA JOHNSON

STARBUCKS COFFEE COMPANY

TAX &CUSTOMS DEPARTMENT

2401 Utah Ave. South

Seattle, WA 98134

RE: The tariff classification of paper poinsettia garland from Hong Kong.

EAR MS.JOHNSON:

In your letter dated July 21, 2004, you requested a classification ruling.

The submitted photocopy of artificial poinsettia flowers is identified as

item number SKU 186983, Christmas Banner Garland. The banner garland

is composed of poinsettia leaves that are made of white paper. The paper

leaves are attached to wire stems that have been wrapped with white paper.

The poinsettia beads are made of styrofoam and coated with red colored lac-

quer. The leaves and beads are bound together with white paper to form the

artificial flower. The flowers are attached together to form a garland that

measures 279 x39x 11-1/29. The paper garland will be used to decorate in a

commercial retail environment. This product will not be an item for resale.

The paper leaves impart the essential character of the garland.

Your letter of inquiry states it is your belief that the poinsettia banner

garland should be classified under heading 9505. The artificial poinsettia

garland is a completed article for decorative purposes like wreaths and

swags. However, classification under Heading 9505 as a festive article for

the Christmas season is not applicable because the goods are not used to

decorate the home. The artificial poinsettia garland will be classified under

Heading 6702.

The applicable subheading for the artificial poinsettia garland will be

6702.90.6500, Harmonized Tariff Schedule of the United States (HTS),

which provides for articles of artificial flowers, foliage and fruit and parts

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thereof; articles made of artificial flowers, foliage or fruit: Of other materi-

als: Other: Other. The rate of duty will be 17 percent ad valorem.

This ruling is being issued under the provisions of Part 177 of the Cus-

toms Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be pro-

vided with the entry documents filed at the time this merchandise is im-

ported. If you have any questions regarding the ruling, contact National Im-

port Specialist Alice Wong at 646–733–3026.

OBERT B. SWIERUPSKI,

Director,

National Commodity Specialist Division.

[ATTACHMENT B]

EPARTMENT OF HOMELAND SECURITY.

UREAU OF CUSTOMS AND BORDER PROTECTION,

NY K88101

August 5, 2004 CLA–2–67:RR:NC:SP:225 K88101

CATEGORY: Classification

TARIFF NO. 6702.90.6500

S.PAMELA JOHNSON

STARBUCKS COFFEE COMPANY

TAX &CUSTOMS DEPARTMENT

2401 Utah Ave. South

Seattle, WA 98134

RE: The tariff classification of paper poinsettia sprigs from Hong Kong.

EAR MS.JOHNSON:

In your letter dated July 21, 2004, you requested a classification ruling.

The submitted sample of a poinsettia leaf sprig is identified as item num-

ber SKU 186985, Christmas Basket Garland. The poinsettia sprig leaves are

made of white paper. The paper leaves are attached to wire stems that have

been wrapped with white paper. The poinsettia sprig beads are made of

styrofoam and coated with red colored lacquer. The wire stems are wrapped

together with white paper to form an artificial flower. They are attached to-

gether to form a sprig that measures 10.259 x69x29. The artificial poinset-

tia sprig is adorned with a red ribbon. The sprig can be hooked onto a bas-

ket. The paper leaves impart the essential character of the poinsettia sprig.

Your letter of inquiry states that the basket ‘‘garland’’ will be used in retail

stores as Christmas decorations and will not be an item for resale. You also

stated it is your belief that this product should be classified under Heading

9505. The artificial poinsettia sprig is not a completed article for decorative

purposes like wreaths and swags. Further, the sprig is not used to decorate

the home. Therefore, classification under Heading 9505 as a festive article

for the Christmas season is not applicable. The artificial poinsettia sprig will

be classified under Heading 6702.

Your sample is returned as you requested.

The applicable subheading for the artificial poinsettia sprig will be

6702.90.6500, Harmonized Tariff Schedule of the United States (HTS),

which provides for articles of artificial flowers, foliage and fruit and parts

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thereof; articles made of artificial flowers, foliage or fruit: Of other materi-

als: Other: Other. The rate of duty will be 17 percent ad valorem.

This ruling is being issued under the provisions of Part 177 of the Cus-

toms Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be pro-

vided with the entry documents filed at the time this merchandise is im-

ported. If you have any questions regarding the ruling, contact National Im-

port Specialist Alice Wong at 646–733–3026.

OBERT B. SWIERUPSKI,

Director,

National Commodity Specialist Division.

[ATTACHMENT C]

EPARTMENT OF HOMELAND SECURITY.

UREAU OF CUSTOMS AND BORDER PROTECTION,

HQ W967854

CLA–2 OT:RR:CTF:TCM W967854 HMC

CATEGORY: Classification

TARIFF NO.: 6702.90.6500

S.PAMELA JOHNSON

STARBUCKS COFFEE COMPANY

TAX &CUSTOMS DEPARTMENT

2401 Utah Ave. South

Seattle, WA 98134

RE: Christmas Banner Garland; Reconsideration of New York Ruling

K88100; Modified

EAR MS.JOHNSON:

This is in response to your letter, dated July 21, 2005, on behalf of

Starbucks Coffee Company, concerning your request for reconsideration of

New York Ruling (‘‘NY’’) K88100, dated August 5, 2004, issued by Customs

and Border Protection (‘‘CBP’’), which classified a garland, identified as the

‘‘Christmas Banner Garland,’’ under subheading 6702.90.6500 of the Harmo-

nized Tariff Schedule of the United States (‘‘HTSUS’’). For the reasons set

forth below, we hereby modify NY K88100.

FACTS:

On July 21, 2004, Starbucks Coffee Company (‘‘Starbucks’’) requested

CBP provide a classification ruling for the ‘‘Christmas Banner Garland’’

(‘‘garland’’), SKU 186983. The garland is described as composed of artificial

‘‘poinsettia’’ leaves made of white paper. The paper leaves are attached to

wire stems that have been wrapped with white paper. The poinsettia beads

are made of Styrofoam and coated with red colored lacquer. The leaves and

beads are bound together with white paper to form the ‘‘poinsettia flower.’’

The flowers are attached together to form the garland that measures 279 x

39 x111/29.

In NY K88100, dated August 5, 2004, in response to Starbucks’ original

ruling request of July 21, 2004, CBP provided the classification of the gar-

land. NY K88100 held that the applicable heading for the articles under con-

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sideration was heading 6702, HTSUS, which provides for ‘‘Artificial flowers,

foliage and fruit and parts thereof; articles made of artificial flowers, foliage

or fruit.’’

Starbucks contends that the garland is classifiable under subheading

9505.10.50, HTSUS. A telephone conference was conducted with Starbucks’

representatives and members of my staff on October 27, 2006, to discuss this

matter.

ISSUE:

Whether the Starbucks’ ‘‘Christmas Banner Garland’’ made of artificial

paper leaves should be classified in heading 9505, HTSUS, as a festive ar-

ticle or in heading 6702, HTSUS, as an article made of artificial flowers, foli-

age or fruit.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the Gen-

eral Rules of Interpretation (GRIs). The systematic detail of the HTSUS is

such that virtually all goods are classified by application of GRI 1, that is,

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 other-

wise require, the remaining GRIs may then be applied.

The HTSUS provisions under consideration are as follows:

6702 Artificial flowers, foliage and fruit and parts thereof; articles

made of artificial flowers, foliage or fruit:

***

6702.90 Of other materials:

***

Other

***

6702.90.65 Other.

****

9505 Festive, carnival or other entertainment articles, including

magic tricks and practical joke articles; parts and accessories

thereof:

***

9505.10 Articles for Christmas festivities and parts and accessories

thereof:

***

Other

***

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9505.10.50 Other.

****

In NY K88100, CBP determined that the garland was not a festive article

and classified it as ’’other artificial flowers, foliage and fruit and parts

thereof; articles made of artificial flowers, foliage or fruit: of other materials‘‘

of subheading 6702.90.6500, HTSUS. NY K88100 found that classification

under heading 9505, as a festive article was not applicable to the subject

merchandise because it was not used to decorate the home. Starbucks be-

lieves that NY K88100, dated August 5, 2004, is not correct. Instead,

Starbucks contends that the garland should be classified as other articles of

Christmas festivities and parts and accessories thereof of subheading

9505.10.5020, HTSUS. Starbucks is of the view that the garland satisfies

the criteria used to classify merchandise as festive articles. The chapter

notes to Chapter 95, HTSUS, do not exclude artificial flowers and foliage.

Similarly, the chapter notes to Chapter 67, HTSUS, do not exclude festive

articles.

We are thus left with the question as to whether the garland in question is

classifiable in heading 9505, HTSUS, as a festive article or in heading 6702,

HTSUS, as an article made of artificial flowers, foliage or fruit. If the article

in question is prima facie classifiable in headings 9505 and 6702, we believe

that GRI 3 must be consulted. We must therefore first determine whether

the subject garland qualifies as a festive article of heading 9505, HTSUS.

In Midwest of Cannon Falls, Inc. v. United States, 20 C.I.T. 123 (Ct. Int’l

Trade, 1996), aff’d in part, rev’d in part, 122 F.3d 1423 (Fed. Cir. 1997) (here-

inafter Midwest), the Court addressed the scope of heading 9505, HTSUS,

specifically the class or kind of merchandise termed ‘‘festive articles,’’ and

provided guidelines for classification of such goods in the heading.

Previously, CBP has noted that several items composed of artificial foliage

satisfy the Midwest guidelines and are recognized as festive articles for the

Christmas holiday. These items include evergreen branches, poinsettia, pine

cone, pine needle leaves, holly leaves, laurel leaves, holly berries or mistle-

toe, which are incorporated into a wreath, centerpiece, candle ring, garland,

swag or sprig. See HQ 967237, dated September 9, 2004; See also, NY

I89773, dated January 27, 2003.

When examining the garland, as a whole, it must be evident that the mer-

chandise is associated or used with the particular festival of Christmas. Fur-

thermore, in HQ 950999, dated April 16, 1992, garlands with artificial foli-

age were classified in 9505.10.40, HTSUS, as festive articles for Christmas

festivities. The following is the language from HQ 950999 wherein CBP ex-

Note 1(e) to Chapter 67, HTSUS, does not specifically exclude festive articles from

Chapter 67, HTSUS. It states that ‘‘1. [t]his chapter does not cover: (e) [t]oys, sports equip-

ment, or carnival articles (chapter 95);...’’Also, Note 3 to Chapter 67, HTSUS, states that

‘‘Heading 6702 does not cover: (b) Artificial flowers, foliage or fruit of pottery, stone, metal,

wood or other materials, obtained in one piece by molding, forging, carving, stamping or

other process, or consisting of parts assembled otherwise than by binding, gluing, fitting

into one another or similar methods.’’ Inasmuch as the subject merchandise is artificial

flowers or foliage consisting of parts assembled by binding, gluing, fitting into one another

or similar methods, it is not excluded from heading 6702, HTSUS.

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plained which types of garlands, wreaths, etc. would be classifiable in

9505.10, HTSUS, as festive articles for Christmas festivities.

Those artificial foliage items which qualify as Christmas articles of sub-

heading 9505.10 include wreaths, garlands, candle rings, centerpieces

— complete articles — made up of foliage commonly and traditionally

associated with Christmas [i.e., artificial poinsettias, pine cones, pine

needle leaves, evergreen branches, holly berries, holly leaves, laurel

leaves, or mistletoe (singly or combination thereof)]. (This largely re-

states Customs position under the TSUS). These articles can be further

decorated with plastic sleighs, miniature Santas, glass balls, ribbon, etc.

Stylized/modern versions of Christmas wreaths, garlands, etc. (i.e.,

those articles decorated with neon poinsettias, mauve glass balls, etc.)

also qualify as festive.

We must determine nevertheless whether the Starbucks decorative article

under consideration can be classified as a festive article in heading 9505,

HTSUS, in light of the Midwest decisions. In making this determination, we

must analyze whether the decoration under consideration fits the criteria

for festive articles that are classified in heading 9505, HTSUS. The Court of

International Trade in Midwest was aided by the criteria established in the

case United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536

F.2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter ‘‘Carborun-

dum’’). Those criteria include the general physical characteristics of the ar-

ticle, the expectation of the ultimate purchasers, the channels, class or kind

of trade in which the item moves, the environment of the sale (accompany-

ing accessories and the manner in which the item is advertised and dis-

played), the use in the same manner as merchandise which defines the

class, the economic practicality of so using the import, and recognition

within the trade of this use. In considering the Midwest standards, we be-

lieve that the garland is not classifiable in heading 9505, HTSUS.

It is our view that the garland under consideration in this instance is not

immediately recognizable as a Christmas decoration. Although Starbucks

has presented evidence to show that it was intended for use as a decoration

in its stores during Christmas time, we believe that based on its appearance,

the garland does not seem to be exclusively associated with Christmas cel-

ebrations. In other words, in our judgment, there seems to be no reason why

it could not be used as a decoration at another time of the year. The garland

that is under consideration in this instance is not the customary garland

that is typically exhibited as Christmas decorations. It is not made of tinsel

nor does it have the usual customary Christmas colors of red and green. Al-

though it is made of white paper and is supposed to resemble poinsettia

leaves and flowers, we do not believe that most people would be able to dis-

cern that the white paper leaves are supposed to be artificial poinsettia

leaves and flowers that are connected with the Christmas celebration. While

the garland is certainly used by Starbucks as a decoration during the

Christmas holiday, if it was set apart from other Christmas decorations, we

do not think that it would immediately stand out as an item that would only

be seen at Christmas time. Rather, in our judgment, the garland could be

easily used to decorate an area during other celebratory occasions besides

the Christmas holidays. Thus, we believe that it would not be aberrant to

display the garland as a decoration at times during the year other than

Christmas.

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Starbucks claims that the garland was used in its stores as a decoration

only during the Christmas holiday season and that it had no other use.

Starbucks further claims that the chapter notes and ENs to heading 9505,

HTSUS, do not exclude articles from the heading if they are not primarily

for use in the home. To support this point, Starbucks submitted a copy of in-

structions that were issued to its stores from a Holiday 2004 Workbook con-

cerning the display of the holiday decorations. These instructions indicate

that all stores will receive the Starbucks holiday trim to create a festive at-

mosphere with a unified theme. The holiday trim will be used from holiday

setup through December 25, and on December 26, it will be removed. The

instructions further explained that the holiday decorations will be removed

and SKU’d for sale, but that the holiday trim is not to be sold prior to De-

cember 26.

Although we recognize that, on a case-by-case basis, an article displayed

outside the house may be found to be a festive article, such consideration is

unnecessary in this case. We disagree with Starbucks’s contention that the

subject garland was intended as a decoration only during the Christmas

holiday season and that it had no other use. As stated above, in this in-

stance, the fact that the subject merchandise is used during the Christmas

holidays did not make it a festive article of heading 9505, HTSUS. We note

that the garland was offered for sale to consumers after the Christmas holi-

day. Thus, it is not unreasonable to conclude that consumers other than

Starbucks could buy the garland and subject it to a different use. The gar-

land, we therefore believe, is not closely associated with the Christmas holi-

day as it may be equally used and displayed on occasions other than the

Christmas holidays. Accordingly, we find that the garland in this case is not

classified as a festive article in heading 9505, HTSUS, but instead in head-

ing 6702, HTSUS, which provides for: ‘‘Artificial flowers, foliage and fruit

and parts thereof: articles made of artificial flowers, foliage or fruit.’’

The

ENs to heading 6702, HTSUS, which provides for artificial foliage, support

the classification of the subject garland as an article made of artificial flow-

ers, foliage or fruit.

See HQ W968134, dated March 13, 2007, for a similar finding on other articles im-

ported into the U.S., which were the subject of a protest by Starbucks.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s)

constitute the official interpretation of the Harmonized System. While not legally binding

on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on

the scope of each heading of the Harmonized System and are thus useful in ascertaining the

classification of merchandise under the Harmonized System. CBP believes the EN’s should

always be consulted. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). The EN to

heading 6702, HTSUS, which states, in pertinent part:

This heading covers:

(1) Artificial flowers, foliage and fruit in forms resembling the natural products, made

by assembling various parts (by binding, glueing, assembling by fitting into one an-

other or similar methods). This category also includes conventional representations

of flowers, foliage or fruit made up in the manner of artificial flowers, etc.

(2) Parts of artificial flowers, foliage or fruit (e.g., pistils, stamens, ovaries, petals, caly-

ces, leaves and stems).

(3) Articles made of artificial flowers, foliage or fruit (e.g., bouquets, garlands, wreaths,

plants), and other articles, for use as trimmings or as ornaments, made by assem-

bling artificial flowers, foliage or fruit.

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HOLDING:

By application of GRI 1, the ‘‘Christmas Banner Garland’’ is classified in

heading 6702, HTSUS. It is specifically provided for in subheading

6702.90.6500, HTSUS, which provides for: ‘‘Artificial flowers, foliage and

fruit and parts thereof; articles made of artificial flowers, foliage or fruit: Of

other materials: Other: other.’’ The column one duty rate is 17 percent. Duty

rates are provided for your convenience and are subject to change. The text

of the most recent HTSUS and the accompanying duty rates are provided on

the internet at www.usitc.gov/tata/hts/.

EFFECT ON OTHER RULINGS:

NY K88100, dated August 5, 2004, is modified with respect to its legal

analysis. The classification of the item described therein is unchanged.

MYLES B. HARMON,

Director,

Commercial and Trade Facilitation Division.

[ATTACHMENT D]

HQ W967855

CLA–2 OT:RR:CTF:TCM W967855 HMC

CATEGORY: Classification

TARIFF NO.: 6702.90.6500

S.PAMELA JOHNSON

STARBUCKS COFFEE COMPANY

TAX &CUSTOMS DEPARTMENT

2401 Utah Ave. South

Seattle, WA 98134

RE: Christmas Basket Garland; Sprig; Reconsideration of New York Rul-

ing K88101; Modified

EAR MS.JOHNSON:

This is in response to your letter, dated July 21, 2005, on behalf of

Starbucks Coffee Company, concerning your request for reconsideration of

New York Ruling (‘‘NY’’) K88101, dated August 5, 2004, issued by Customs

and Border Protection (‘‘CBP’’), which classified a sprig, identified as the

‘‘Christmas Basket Garland’’ under subheading 6702.90.6500 of the Harmo-

nized Tariff Schedule of the United States (‘‘HTSUS’’). For the reasons set

forth below, we hereby modify NY K88101.

FACTS:

On July 21, 2004, Starbucks Coffee Company (‘‘Starbucks’’) requested

CBP provide a classification ruling for a sprig identified as the ‘‘Christmas

Basket Garland,’’ SKU 186985, (‘‘sprig’’). The sprig is composed of ‘‘poinset-

tia’’ leaves made of white paper. The paper leaves are attached to wire stems

that have been wrapped with white paper. The poinsettia sprig beads are

made of Styrofoam and coated with red colored lacquer. The wire stems are

bound together with white paper to form an artificial flower. They are at-

tached together to form a sprig that measures 10.259 x69x2.9The artificial

poinsettia sprig is adorned with a red ribbon. The sprig can be hooked onto a

basket. There is no dispute that the paper leaves impart the essential char-

acter to the poinsettia sprig.

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In NY K88101, dated August 5, 2004, in response to Starbucks’ original

ruling request of July 21, 2004, CBP provided the classification of the sprig.

NY K88101 held that the applicable heading for the articles under consider-

ation was heading 6702, HTSUS, which provide for ‘‘Artificial flowers, foli-

age and fruit and parts thereof; articles made of artificial flowers, foliage or

fruit.’’

Starbucks contends that the sprig is classifiable under subheading

9505.10.50, HTSUS. A telephone conference was conducted with Starbucks’

representatives and members of my staff on October 27, 2006, to discuss this

matter. We note that CBP recently issued protest decision HQ W968134,

dated March 13, 2007, in which it classified identical merchandise under

subheading 6702.90.65, HTSUS, as ‘‘[a]rtificial flowers, foliage and fruit and

parts thereof; articles made of artificial flowers, foliage or fruit: of other ma-

terials: other: other.’’

ISSUE:

Whether the Starbucks’ sprig, made of artificial paper leaves should be

classified in heading 9505, HTSUS, as a festive article or in heading 6702,

HTSUS, as an article made of artificial flowers, foliage or fruit.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the Gen-

eral Rules of Interpretation (GRIs). The systematic detail of the HTSUS is

such that virtually all goods are classified by application of GRI 1, that is,

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 other-

wise require, the remaining GRIs may then be applied.

The HTSUS provisions under consideration are as follows:

6702 Artificial flowers, foliage and fruit and parts thereof; articles

made of artificial flowers, foliage or fruit:

***

6702.90 Of other materials:

***

Other

***

6702.90.65 Other.

****

9505 Festive, carnival or other entertainment articles, including

magic tricks and practical joke articles; parts and accessories

thereof:

***

9505.10 Articles for Christmas festivities and parts and accessories

thereof:

***

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Other

***

9505.10.50 Other.

****

In NY K88101, CBP determined that the sprig was not a festive

article and classified it as ‘‘other artificial flowers, foliage and fruit

and parts thereof; articles made of artificial flowers, foliage or fruit:

of other materials’’ of subheading 6702.90.6500, HTSUS. NY K88101

found that classification under heading 9505, as a festive article was

not applicable to the subject merchandise because it was not a com-

plete article for decorative purposes like wreaths and swags and be-

cause it was not used to decorate the home. Starbucks believes that

NY K88101, dated August 5, 2004, is not correct. Instead, Starbucks

contends that the sprig should be classified as other articles of

Christmas festivities and parts and accessories thereof of subhead-

ing 9505.10.5020, HTSUS. Starbucks is of the view that the sprig is

a complete article and satisfies the criteria used to classify merchan-

dise as festive articles. The chapter notes to Chapter 95, HTSUS, do

not exclude artificial flowers and foliage. Similarly, the chapter notes

to Chapter 67, HTSUS, do not exclude festive articles.

We are thus left with the question as to whether the sprig in ques-

tion is classifiable in heading 9505, HTSUS, as a festive article or in

heading 6702, HTSUS, as an article made of artificial flowers, foli-

age or fruit. If the article in question is prima facie classifiable in

headings 9505 and 6702, we believe that GRI 3 must be consulted.

We must therefore first determine whether the subject sprig quali-

fies as a festive article of heading 9505, HTSUS.

In Midwest of Cannon Falls, Inc. v. United States, 20 C.I.T. 123

(Ct. Int’l Trade, 1996), aff’d in part, rev’d in part, 122 F.3d 1423 (Fed.

Cir. 1997) (hereinafter Midwest), the Court addressed the scope of

heading 9505, HTSUS, specifically the class or kind of merchandise

termed ‘‘festive articles,’’ and provided guidelines for classification of

such goods in the heading.

Previously, CBP has noted that several items composed of artifi-

cial foliage satisfy the Midwest guidelines and are recognized as fes-

Note 1(e) to Chapter 67, HTSUS, does not specifically exclude festive articles from

Chapter 67, HTSUS. It states that ‘‘1. [t]his chapter does not cover: (e) [t]oys, sports equip-

ment, or carnival articles (chapter 95);...’’ Also, Note 3 to Chapter 67, HTSUS, states that

‘‘Heading 6702 does not cover: (b) Artificial flowers, foliage or fruit of pottery, stone, metal,

wood or other materials, obtained in one piece by molding, forging, carving, stamping or

other process, or consisting of parts assembled otherwise than by binding, gluing, fitting

into one another or similar methods.’’ Inasmuch as the subject merchandise is artificial

flowers or foliage consisting of parts assembled by binding, gluing, fitting into one another

or similar methods, it is not excluded from heading 6702, HTSUS.

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tive articles for the Christmas holiday. These items include ever-

green branches, poinsettia, pine cone, pine needle leaves, holly

leaves, laurel leaves, holly berries or mistletoe, which are incorpo-

rated into a wreath, centerpiece, candle ring, garland, swag or sprig.

See HQ 967237, dated September 9, 2004; See also, NY I89773,

dated January 27, 2003.

When examining the sprig, as a whole, it must be evident that the

merchandise is associated or used with the particular festival of

Christmas. Furthermore, in HQ 950999, dated April 16, 1992, gar-

lands with artificial foliage were classified in 9505.10.40, HTSUS, as

festive articles for Christmas festivities. The following is the lan-

guage from HQ 950999 wherein CBP explained which types of gar-

lands, wreaths, etc. would be classifiable in 9505.10, HTSUS, as fes-

tive articles for Christmas festivities.