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HQ 964769




October 25, 2001

CLA-2 RR:CR:TE 964769 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.:

Port Director
Port of Los Angeles
300 South Ferry Street
Terminal Island, CA 90731

RE: Protest With Application for Further Review; Protest No. 2704- 00-103199; Park B. Smith; Festive Articles; Elf Hat

Dear Ms. Adams:

This is in reply to your memorandum dated December 20, 2000, concerning the Protest and Application for Further Review (AFR), Protest No. 2704-00-103199, filed by the law firm of Politis & Politis, of behalf of Aspen Marketing, Inc.

FACTS:

The record reflects that on October 17, 2000, November 9, 2000, and October 30, 2000, the protestant made four entries of elf hats. The Protestant classified the elf hats under subheading 6503.00.6000, of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which is free of duty and free of quota/visa requirements.

On November 7, 2000, November 15, 2000, and November 16, 2000, Customs issued Notices to Redeliver informing the Protestant that the elf hats had been incorrectly classified and that they should have been classified under subheading 6505.90.8090, HTSUSA, and are subject to quota/visa category 659. The rate advance notices advised the Protestant that the new duty rate was 7% ad valorem, plus $0.20/KG.

Thereafter, on December 5, 2000, the protestant filed the instant AFR contesting the Notices to Redeliver. The protest challenges the correct classification of the hats for quota/visa purposes.

ISSUE:

The correct classification of the elf hats in light of the Court of International Trade’s Decision in Park B. Smith, Ltd. v. United States, Court No. 96-02-00344, on appeal to the Court of Appeals for the Federal Circuit.

LAW AND ANAYLSIS:

The issue presented in the instant protest, the classification under heading 9505, HTSUSA, of textile articles that incorporate holiday or seasonal motifs, is currently pending in the Court of Appeals for the Federal Circuit (CAFC) in the case of Park B. Smith, Ltd. v. United States, No. 01-1578 (Fed. Cir. Filed Oct. 13, 2001).

In accordance with section 152.16(e), Customs Regulations (19 CFR 152.16(e)), unless the Customs Service directs otherwise, the principles of any court decision adverse to the Government will be applied to unliquidated entries and protested entries which have not been denied in whole or in part and in which the same issue is involved as soon as the time within which an application for a rehearing or review may be filed has expired without such application having been made. Because an appeal was filed with the CAFC in Park B. Smith, it is premature to grant or deny the instant protest.

HOLDING:

In accordance with section 3E of Customs Directive Number 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to suspend the Protest pending disposition of Park B. Smith, Ltd. v. United States, No. 01-1578 (Fed. Cir. Filed Oct. 13, 2001). Thereafter, the entries under AFR 2704-00-103199 should be reliquidated in accordance with the judgement order of the Court of Appeals for the Federal Circuit, pursuant to 19 CFR § 152.16.

Sincerely,

John Durant, Director
Commercial Rulings Division

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