CLA-2 RR:CR:TE 966020 RH
U.S. Customs Service
JFK International Airport
Jamaica, NY 11430
ATTN: Chief, Liquidation and Protest Branch
RE: Decision on Application for further review of protest number
1001-01-103196; classification of posters under subheading
4911.91.2020; trade advertising material; 4911.10.0080
This is in reply to your memorandum of October 21, 2002, forwarding the above referenced protest to our office for review.
The protest was timely filed by the law firm of Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, on behalf of Avante Garde, on July 27, 2001. The protest is against Customs classification and liquidation of poster boards under subheading 4911.91.2020 of the Harmonized Tariff Schedule of the United States (HTSUS).
At the time of entry of the subject posters, in May 2000, merchandise classifiable under subheading 9903.08.11, HTSUS (affecting articles in subheading 4911.91.20, HTSUS (lithographs)), was subject to 100 percent ad valorem duties imposed on a list of products of certain member states of the European Community (EC) as a result of the EC’s failure to implement the recommendations and ruling of the World Trade Organization (WTO) Dispute Settlement Body concerning the EC’s regime for the importation, sale and distribution of bananas.
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On July 6, 2001, the Office of the United States Trade Representative (USTR) filed a Notice of termination of action, monitoring, and request for public comments, stating that the EC is taking satisfactory measures to grant the rights
of the United States under the WTO Agreement, and proposing to terminate the 100 percent ad valorem duties on the list of EC products, including lithographs, and to monitor the EC’s compliance.
The termination of increased duties is effective with respect to articles entered, or withdrawn from warehouse, for consumption, on or after July 1, 2001, except that the termination of increased duties on articles classified in subheading 4911.91.20, HTSUS, is effective with respect to articles entered, or withdrawn from warehouse, for consumption, on or after March 3, 1999, for which unliquidated entries or entries subject to timely protest are pending before Customs. This action by the USTR effectively voids the sanctions against lithographs ab initio.
In the instant protest, counsel argues that the merchandise is classifiable under subheading 4911.10.0080, HTSUS, as trade advertising material, and not under subheading 4911.91.2020, HTSUS, as posters.
The merchandise consists of two styles of advertising poster-boards. The first style consists of rectangular rigid posters depicting sport-action scenes, such as bike riding and surfing. Written on the posters are the words “Arnette” or “Privateer,” which represent the brand of sunglasses that are displayed on the poster boards. In addition, the poster-boards contain a hole in each upper corner through which wire can be inserted to hang and display the poster-boards. The protestant states that the poster-boards are used as an in-store advertisement display of the sunglasses depicted in the poster-board images.
The second style is a smaller rectangular rigid poster also depicting sport-action scenes. In addition, the term “Arnette” is written along the base in reference to the brand of sunglasses featured in the poster. However, unlike the first style which contains holes for hanging, the second style has a scored fold-out back support which acts as a leg to aid in the use of the poster-board as a counter-top display within retail stores.
What is the correct classification and rate of duty of the posters?
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LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.
Where goods cannot be classified solely on the basis of GRI 1, the remaining GRIs will be applied.
Heading 4911.10.0080, HTSUS, provides for “Other printed matter, including printed pictures and photographs: Trade advertising material, commercial catalogs and the like: Other.”
The verb “to advertise” is defined, in Webster’s Ninth New Collegiate Dictionary (1991), as follows:
1 : to make something known to: NOTIFY 2 a : to make publicly and generally known. . . b : to announce publicly esp. by a printed notice or broadcast c: to call public attention to esp. by emphasizing desirable qualities so as to arouse a desire to buy or patronize. . . .
We agree with the protestant that the instant merchandise is trade advertising material. It depicts images of sporting activities in which the sunglasses are prominently displayed and it contains printed text referencing the brand of sunglasses being depicted in the poster-boards. The poster-boards “emphasize desirable qualities so as to arouse a desire to buy” the sunglasses.
Moreover, in New York Ruling Letter (NY) 813626, dated August 29, 1995, Customs classified a “counter card,” intended to be placed on a display counter in a retail store, under subheading 4911.10.0080, HTSUS. The counter card was printed with a picture of a watch accompanied by the caption “RADO,” “Switzerland.” The back layer had been perforated and scored to form a fold-out stand.
Like the counter card in NY 813626, the poster-boards in the instant case contain both an image of the articles being advertised, as well as a reference to the article by name. Accordingly, we find that the poster-boards are correctly classified under subheading 4911.10.0080, HTSUS.
The protest should be ALLOWED. The merchandise in question is classifiable under subheading 4911.10.0080, HTSUS, free of duty.
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In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision.
No later than sixty days from the date of this letter, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Myles B. Harmon, Director
Commercial Rulings Division