HQ H024672

March 27, 2008

CLA-2 OT:RR:CTF:TCM H024672 CMR

CATEGORY: Classification

TARIFF NO.:

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