CLA-2 OT:RR:CTF:TCM H025865 JPJ
Port Director
U.S. Customs and Border Protection
555 Battery Street
San Francisco, CA 94111
RE: Application for Further Review of Protest No. 2809-08-100121
Dear Port Director:
On March 5, 2008, you forwarded Protest No. 2809-08-100121, filed by Target Customs Brokers, Inc., on behalf of Target Stores, a division of Target Corporation (“Target”), to this office for further review.
FACTS:
Protest No. 2809-08-100121, which included an Application for Further Review (“AFR”), was timely filed by Target on February 19, 2008. The decision protested is the classification and rate of duty on one entry of kitchen towels entered at the port of San Francisco on October 12, 2006.
The entry at issue liquidated on August 24, 2007, with the merchandise classified in subheading 6302.60.0010, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for: “Bed linen, table linen, toilet linen and kitchen linen: Toilet linen and kitchen linen, of terry toweling or similar terry fabrics, of cotton. . . Towels: Dish”.
Style number SH2.KT05, described as “Snowman Toss Terry KT 2 pc pk”, is a 2-piece pack of cotton kitchen towels. The towels incorporate printed designs of snowflakes, snowmen, snowmen holding wrapped gifts, and snowmen holding candy canes. Style number SH2.KT01, described as “Penguin Toss Terry KT 2 pc pk”, is a 2-piece pack of cotton kitchen towels. The towels incorporate printed designs of snowflakes, wrapped gifts, penguins, and
penguins holding candy canes. Style number SB.KT07, described as “Printed Holly Pattern KT 2 pc pk” is a 2-piece pack of cotton kitchen towels. The towels incorporate printed designs of holly and berries. Style number SB.KT01, described as “Printed Toss Pattern KT 2 pc pk” is a 2-piece pack of cotton kitchen towels. The towels incorporate printed designs of reindeer and snowmen.
ISSUE:
Whether the merchandise is classified in heading 6302, HTSUSA, as kitchen linen, or in heading 9505, HTSUSA, as festive articles.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI’s). 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 may then be applied.
The HTSUSA provisions under consideration are as follows:
6302 Bed linen, table linen, toilet linen and kitchen linen:
* * * * *
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
The Harmonized Commodity Description and Coding System Explanatory Notes ("EN’s") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
Target asserts that the articles at issue are classified in subheading 9505.10.5020, HTSUSA, which provides for: “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: Other. Other.”
On December 8, 2008, CBP issued its Guidance on the Classification of Festive Articles. A copy is enclosed with this decision. In that guidance, CBP set forth its position regarding the classification of utilitarian articles with festive designs and/or motifs entered prior to February 3, 2007:
Except for baking pans, cookie cutters, cookie stamps and presses that are used in preparation for a festive occasion and not used or displayed during a festive occasion, utilitarian or functional articles with festive designs and/or motifs entered prior to February 3, 2007 shall be classified and liquidated in Chapter 95, specifically heading 9505, as festive articles, if: (1) the articles are closely associated with a festive occasion, and (2) the articles are used or displayed principally during that festive occasion such that use or display at any other time would be aberrant.
Commonplace snowmen among snowflakes can not be said to be so intrinsically linked to Christmas such that their use during other time periods would be aberrant. See HQ 958841, dated July 8, 1996; NY L85115, dated June 13, 2005 (snowman); NY N027341, dated May 20, 2008; and NY N029324, dated June 18, 2008. Likewise, commonplace penguins and reindeer are not so closely associated with Christmas such that their use during other time periods would be aberrant. See NY F86902, dated May 31, 2000 (reindeer); and NY L85115, dated June 13, 2005 (reindeer).
However, wrapped presents, holly leaves and holly berries, and candy canes are closely associated with Christmas. See HQ 951520, dated October 31, 1992 (holly and berries); HQ 089320, dated September 13, 1999 (holly and berries); NY H83646, dated August 3, 2001; NY H86098, dated December 12, 2001; NY I83657, dated July 18, 2002; NY N009469, dated April 30, 2007; NY N028778, dated June 12, 2008 (holly and berries); and NY N045124, dated December 3, 2008 (wrapped presents).
Therefore, based on our guidance and the rulings cited above, style numbers SH2.KT05, SH2.KT01, SB.KT07 are classifiable in heading 9505, HTSUS. Style number SB.KT01 is classifiable in heading 6302, HTSUS.
HOLDING:
Protest No. 2809-08-100121 is ALLOWED in part with regard to style numbers SH2.KT05, SH2.KT01, SB.KT07 and DENIED in part with regard to style number SB.KT01.
Style numbers SH2.KT05, SH2.KT01, SB.KT07 are classifiable in heading 9505, HTSUSA. They are specifically provided for in subheading 9505.10.5020, HTSUSA, as: “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: Other, Other”. The 2006 general, column one rate of duty is Free.
Style number SB.KT01 is classifiable in heading 6302, HTSUSA. It is specifically provided for in subheading 6302.60.0010, HTSUSA, as: “Bed linen, table linen, toilet linen and kitchen linen: Toilet linen and kitchen linen, of terry toweling or similar terry fabrics, of cotton, Towels: Dish”. The 2006 general, column one rate of duty is 9.1% ad valorem. The applicable textile category code is 369.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 CBP’s “Guidance on the Classification of Festive Articles” issued on December 8, 2008. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the 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