CLA-2 OT:RR:CTF:TCM H024672 CMR
Port Director
U.S. Customs and Border Protection
1000 Second Avenue
Suite 2100
Seattle, WA 98104
RE: Protests and Application for Further Review; Protest Nos. 3001-08-100006, 3001-08-
100007, 3001-08-100008, 3001-08-100011, 3001-07-100591, 3001-08-100012, 3001-08-100014, 3001-08-100016, 3001-08-100017, 3001-07-100619, 3001-07-100621, 3001-08-100010, 3001-08-100005, 3001-07-100625, 3001-08-100013, 3001-08-100024, 3001-07-100618, 3001-07-100592, 3001-07-100624, 3001-07-100597, 3001-07-100626, 3001-07-100588, 3001-08-100023
Dear Port Director:
This is in response to the numerous protests forwarded to this office by your port accompanied by routing slips, but no memorandum explaining the port's position, and involving the classification of various articles classified by the port in provisions other than heading 9505 of the Harmonized Tariff Schedule of the United States (HTSUS). The protestant, Target Stores, believes the merchandise which is the subject of these numerous protests is classifiable as "festive articles" of heading 9505, HTSUS.
FACTS:
The protestant filed multiple protests against the port's decision to classify various merchandise in provisions of the HTSUS other than the provision claimed by the protestant. The protestant seeks classification of the various merchandise at issue in heading 9505, HTSUS, which provides for, among other things, "festive articles." Protestant sought further review for each protest filed and the port approved each application for further review. The protests and the merchandise identified as at issue therein and addressed in this response are listed below.
PROTESTS MERCHANDISE CLASSIFIED AT LIQUIDATION
3001-08-100006 Ceramic Dinnerware 6912.00.3910, 6912.00.3950
3001-08-100007 Ceramic Dinnerware 6912.00.3910
3001-08-100008 Ceramic Dinnerware 6912.00.3910
3001-08-100011 Ceramic Dishes 6912.00.4810
3001-07-100591 Tablecloths 3924.90.1050
3001-08-100012 Vinyl placemats, 3924.90.1050, Tablecloths, Table runners 6302.51.2000, 6302.51.4000
3001-08-100014 Various cotton kitchen items 6304.92.0000
3001-08-100016 Vinyl placemats, 3924.90.1050, Tablecloths, Table runners 6302.51.2000, 6302.51.4000
3001-08-100017 Vinyl placemats, 3924.90.1050, Tablecloths, Table runners 6302.51.2000, 6302.51.4000
3001-08-100023 Placemats, Table runners 6302.51.4000
3001-07-100619 Hand Towels 6302.60.0020
3001-07-100621 Towels 6302.60.0020
3001-08-100010 Kitchen Towels 6302.60.0010
3001-08-100005 Kitchen Towels 6302.60.0010
3001-07-100625 Slipper Socks 6405.20.9015
3001-08-100013 Socks 6115.93.9020
3001-08-100024 Socks 6115.93.9020
3001-07-100618 Wastebaskets 3924.90.5500
3001-07-100592 Pails 8007.00.1050
3001-07-100624 Plush Baskets 6307.90.9889
3001-07-100597 Plush Baskets 6307.90.9889
3001-07-100626 Party Tubs 3924.90.5500
3001-07-100588 Party Tubs 3924.90.5500
3001-08-100036 Party Treat Bags 3923.29.0000
The protests were timely filed. We will discuss the approval of the applications for further review by the port below.
ISSUES:
Whether the applications for further review should have been approved for all of the protests which were forwarded to this office.
Whether protests should be denied based on Customs and Border Protection's limitation of the application of the decisions of the Court of Appeals for the Federal Circuit and the Court of International Trade in the case of Park B. Smith, Ltd. v. United States, 25 Ct. Int'l Trade 506 (2001), affirmed in part, vacated in part, and remanded, 347 F. 3d 922 (Fed. Cir. 2003) to the entries before the courts in that litigation.
Whether protests should be denied or suspended due to litigation on the classification of various merchandise and the question of classification as "festive articles" pending before the Court of International Trade and the Court of Appeals for the Federal Circuit.
LAW AND ANALYSIS:
With regard to the approval of the applications for further review (AFR), approval was proper under 19 CFR § 174.26(b)(1)(iii) which provides for review of a protest "if the protest and application for further review raise an issue involving . . . (iii) The interpretation of a court decision or ruling of the Commissioner of Customs or his designee[.]" However, we note that the port should have referred to the "Protest/Petition Processing Handbook", at page 16, wherein it states at (e):
An approved AFR sent to [Regulations and Rulings of the Office of International Trade] for review is designated as the "lead" protest. Subsequent protests filed on the same class of merchandise and issues may reference the "lead" protest and be suspended in ACS (PMAC) with a process status code "SU1" pending a decision on the "lead" protest.
We note that the paragraph above states that subsequent protests may reference the "lead" protest and with regard to protests 3001-08-100006, 3001-08-100007, and 3001-08-100008, these protests were filed on the same day. However, 3001-08-100011 was filed on January 7, 2008, and while the protestant notes in Section V of the Protest Form that a prior request had been made of a district director for "further review of the same claim with respect to the same or substantially similar merchandise," box 8 wherein the protestant should have noted the number of the previously filed protest was left blank. Additionally, Part V of the "Protest/Petition Processing Handbook", at page 19, provides, in relevant part, with regard to "Suspensions":
Lead protests and associated protests should only be suspended if there is a test case before the Court of International Trade (CIT), an AFR has been granted, or an internal advice request is before Headquarters on the exact same issue. [Emphasis added].
Based on the paragraph cited above and the fact that protests 3001-08-100006, 3001-08-100007, 3001-08-100008, and 3001-08-100011 all deal with the issue of the classification of ceramic dinnerware, albeit with somewhat different motifs, the approval of AFR for one of these protests should have led to the suspension of the other protests until such time as this office made a decision on the lead protest. After that decision, should the port be concerned that a different motif may lead to a different decision, at that time the port would be able to pose that question to this office or forward the protest in question for our consideration. The same situation occurs in protests 3001-07-100591, 3001-08-100012, 3001-08-100014, 3001-08-100016, and 3001-08-100017. Only one of these protests needed to be forwarded to this office, not all. The protestant or the port should have selected a lead protest (preferably the protest dealing with all of the types of merchandise in contention) and suspended the rest under that protest. This is also true of the remaining protests submitted to this office. Multiple protests on the same merchandise, involving the same issue, for the same protestant should not have all been approved for AFR. One for each type of merchandise at issue would have sufficed and would have been in accordance with the instructions contained in the "Protest/Petition Processing Handbook."
We note that in all of the submitted protests, the protestant cites for reliance upon
Midwest of Cannon Falls, Inc. v. United States, 122 F. 3d 1423 (Fed. Cir. 1997), Park B. Smith, Ltd. v. United States, 347 F. 3d 922 (Fed. Cir. 2003), and Wilton Industries, Inc. v. United States, 493 F. Supp. 2d 1294. On April 5, 2006, Customs and Border Protection (CBP) published notice that it was limiting the application of the courts decisions in Park B. Smith, Ltd. v. United States, 25 Ct. Int'l Trade 506 (2001), affirmed in part, vacated in part, and remanded, 347 F. 3d 922 (Fed. Cir. 2003) to the entries before the court in that litigation (hereinafter "Limiting Decision"). In that notice, CBP set forth its position regarding the classification of utilitarian articles featuring festive motifs. CBP is still litigating this issue before the courts. The decision in Wilton Industries, also cited by the protestant, has not yet become final and is the subject of an appeal to the Court of Appeals for the Federal Circuit. With regard to Midwest, as stated in CBP's Limiting Decision, the agency has applied the Midwest decision only to merchandise of substantially the same nature as the merchandise before the court in that case. As such, only utilitarian articles consisting of a three-dimensional representation of an accepted symbol for a recognized holiday, like the merchandise at issue in Midwest, is classifiable as "festive articles."
The question of the classification of ceramic dinnerware as "festive articles" of heading 9505, HTSUS, is currently before the Court of International Trade in the matter of Cuthbertson Imports Inc. v. United States, Court No. 03-00846. We note that the merchandise at issue therein does not include any merchandise that consists of a three-dimensional representation. With regard to the merchandise at issue in protests 3001-08-100006, 3001-08-100007, 3001-08-100008 and 3001-08-100011, Cuthbertson precludes this office from issuing a substantive response. See 19 CFR § 177.7(b) which provides that "[n]o ruling letter will be issued with respect to any issue which is pending before the United States Court of International Trade, the United States Court of Appeals for the Federal Circuit, or any court of appeal therefrom." However, with regard to protests 3001-08-100006, 3001-08-100008 and 3001-08-100011, while Cuthbertson precludes this office from issuing a substantive response, we note that each of these protests appear to include certain merchandise which consists of three-dimensional representations of an accepted symbol for a recognized holiday. Our holding below reflects the application of the "Guidance on the Classification of Festive Articles" issued on June 28, 2005 to Directors in Field Operations, updated on April 14, 2006, and available on the CBP web site. We have enclosed copies for your convenience.
With regard to the merchandise at issue in the remaining protests, due to the cases currently pending before the Court of International Trade and the Court of Appeals for the Federal Circuit involving the classification of utilitarian articles with festive motifs, we will issue a limited response providing our decision without a detailed analysis. We rely on our Limiting Decision to set forth our position. A copy is enclosed with this decision. Additionally, we note that for some merchandise at issue, previously issued rulings on substantially similar merchandise support the decision of the port not to classify the merchandise at issue in heading 9505, HTSUS, as "festive articles." See Headquarters Ruling Letter (HQ) 967444, dated January 18, 2005 (three-dimensional representation plush baskets; Easter Bunny basket classified as "festive article", chick basket classified in heading 6307, HTSUS); and, New York Ruling Letter (NY) G87381, dated March 9, 2001 (classification of plastic buckets with stickers to decorate the buckets for Halloween, classified in heading 3926, HTSUS).
Specifically with regard to protests 3001-07-100597 and 3001-07-100624, the following rulings are quite instructive: HQ 961543, HQ 962321, and HQ 962512, all dated February 10, 1999; HQ 962570, dated February 18, 1999; and HQ 958917, HQ 958182, and HQ 958478, all dated February 23, 1999. Based on the cited rulings which all classified various jack o' lantern baskets or similar containers in heading 9505, HTSUS, protests 3001-07-100597 and 3001-07-100624 are to be allowed.
Finally, two cotton chair back covers are among the various articles at issue in protest 3001-08-100014. While CBP views the other articles at issue in the protest (oven mitt, pot holders, utensil holder, placemat, and fabric table runner) as serving utilitarian purposes, i.e., protecting either a person or a surface, the chair back covers are purely decorative articles. They are constructed of woven cotton fabric and are flat, not stuffed, so they provide no support to someone sitting in a chair like a cushioned back cover would. As such, their only purpose is for decoration and applying Midwest, supra, the chair back covers are classifiable as "festive articles" of heading 9505, HTSUS.
HOLDING:
Protest Action
3001-08-100006 Deny in part, Allow in part
3001-08-100007 Deny
3001-08-100008 Deny in part, Allow in part
3001-08-100011 Deny in part, Allow in part
3001-07-100597 Allow
3001-07-100624 Allow
3001-08-100014 Deny in part, Allow in part
3001-07-100591 Deny
3001-08-100012 Deny
3001-08-100016 Deny
3001-08-100017 Deny
3001-08-100023 Deny
3001-07-100619 Deny
3001-07-100621 Deny
3001-08-100010 Deny
3001-08-100005 Deny
3001-07-100625 Deny
3001-08-100013 Deny
3001-08-100024 Deny
3001-07-100618 Deny
3001-07-100592 Deny
3001-07-100626 Deny
3001-07-100588 Deny
3001-08-100036 Deny
Protests 3001-08-100006, 3001-08-100008 and 3001-08-100011 are allowed in part with regard to the items that are three-dimensional representations of a snowman wearing a Santa hat (protest 3001-08-100006), a snowman wearing a top hat, holding holly leaves and holly berries in its arms, and featuring a red and white candy cane stripe pattern at its base (protest 3001-08-100008), and a cauldron (protest 3001-08-100011). Without samples we are unable to say with certainty if the jack o' lantern candy bowl (protest 3001-08-100011) is truly a three-dimensional representation and will leave the decision to allow or deny the protest with regard to that article with the port. The port is to allow the protests based on rulings on substantially similar merchandise classifying such merchandise as festive articles in heading 9505, HTSUS. See HQ 962453, dated November 3, 1999; HQ 963273, dated May 20, 2000; HQ 962657, dated May 20, 2000; HQ 962671, dated March 14, 2000; and, NY F88437, dated July 13, 2000. However, with regard to certain merchandise wherein the three-dimensional representation does not form the functional portion of the merchandise, such as the cake stand (protest 3001-08-100008) and 3-tier trays (protests 3001-08-100006 and 3001-08-100008), the merchandise is not classifiable as "festive articles" of heading 9505, HTSUS.
With regard to protest 3001-08-100014, you are to allow the protest with regard to the classification of the cotton chair back covers in heading 9505, HTSUS.
With regard to the remaining protests, you are instructed to deny the protests. If the protestant requests such action, in lieu of denial, you may suspend the protests under one of the currently pending cases on festive articles. The protestant should identify the case under which suspension is sought.
In accordance with the 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. You are to also mail a copy of the Limiting Decision and CBP's "Guidance on the Classification of Festive Articles" issued on June 28, 2005, and updated on April 14, 2006. Any reliquidation of the entry in accordance with this decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision
available to CBP personnel, and to the public on the CBP Home Page 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
Enclosures