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HQ 967317




September 14, 2004

CLA-2: RR:CR:TE 967317 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.30.3054

Port Director

C/O Protest Review Officer
Port of Buffalo
Customs and Border Protection
111 West Huron Street
Room No. 603
Buffalo, NY 14202

RE: Application for Further Review of Protest No. 0901-04-100129

Dear Port Director:

This is in reply to your correspondence forwarding an Application for Further Review (AFR) of Protest No. 0901-04-100129, filed by Norman G. Jensen, Inc., on behalf of the American Sales Company. No sample has been submitted with the protest.

FACTS:

This protest is against Customs and Border Protection’s (CBP) classification of one entry of merchandise consisting of children’s textile costumes. Although the entry also included the adult version of these textile costumes, only the children’s costumes are now the subject of this protest. The subject costume, identified as Style # 1217AS, is described as a child’s witch costume with accent feathers, which includes a hat, dress, and belt.

The protestant entered the subject merchandise free of duty as a textile costume in subheading 9505.90.6000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). CBP liquidated the adult witch costumes under subheading 9505.90.6000, HTSUSA. However, the children’s witch costumes were the subject of CBP New York Ruling (NY) I85312, dated September 12, 2002, and were classified as wearing apparel in subheading 6114.30.3054, HTSUSA. In NY I85312, the child’s witch costume was described as “well made”
and as having a “finished” neck. Thus, the child’s witch costume was liquidated consistent with NY I85312 under subheading 6114.30.3054, HTSUSA. Liquidation of the entry occurred on December 26, 2003.

The protestant has challenged the Port Director’s determination that the subject merchandise is properly classified as wearing apparel in subheading 6114.30.3054, HTSUSA. The protestant filed a protest with an application for further review, which was received by CBP on March 23, 2004. The importer’s AFR request was approved. The protest was timely filed pursuant to 19 U.S.C. 1514(c)(3) and 19 C.F.R. 174.12(e)(1).

In support of protestant’s application for further review, protestant alleges that the costume is properly classified under subheading 9505.90.6000, HTSUSA, duty free, in accordance with a case issued by the United States Court of Appeals for the Federal Circuit (CAFC), Rubies Costume Company v. United States, 337 F.3d 1350 (August 1, 2003). The protestant also cites to a CBP memorandum dated October 30, 2003, TBT-03-023, which directed the field on action to be taken on entries affected by the decision in the Rubies case.

ISSUE:

Does AFR Protest No. 0901-04-100129 satisfy the criteria for further review under 19 CFR §§174.24 and 174.25?

LAW AND ANALYSIS:

Section 174.24 of the Customs Regulations (19 CFR §174.24) lists the criteria for granting an AFR. It states that an AFR will be granted when the decision against which the protest was filed:

Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise;

Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts;

Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or

Is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to §177.11(b)(5) of this chapter.

Additionally, Section 174.25(b)(3) of the Customs Regulations (19 CFR §174.25(b)(3)) provides, in pertinent part, that an application for further review shall contain a statement of any facts or additional legal arguments, not part of the record, upon which the protesting party relies, including the criterion set forth in §174.24 which justifies further review.

The protestant has not provided any criterion set forth in 19 CFR 174.24 which would justify further review. The subject merchandise was liquidated as wearing apparel under subheading 6114.30.3054, HTSUSA, in accordance with NY I85312, wherein the child’s witch costume was described as “well made” and having a “finished” neck. Protestant has not provided any specific statement of facts or additional legal arguments that would support a finding that the textile costume is classifiable in subheading 9505.90.6000, HTSUSA, as a costume which is flimsy, non-durable, and not a normal article of wearing apparel, pursuant to the criteria set forth in previous classification rulings that were granted deference in the CAFC’s decision in Rubies Costume Company v. United States, 337 F.3d 1350 (August 1, 2003). Furthermore, no sample has been provided upon which CBP could make this determination. Protestant must provide specific information to meet its claim that AFR is warranted. See 19 CFR 174.25(b)(3); HQ 966550, dated August 22, 2003 and HQ 966810 dated December 10, 2003.

Accordingly, we find that the protestant fails to meet the criteria of 19 CFR §174.24 and the justification requirements of 19 CFR §174.25(b)(3), and that further review of the AFR is not warranted.

HOLDING:

Protest No. 0901-04-100129 does not meet the criteria for further review under 19 CFR §174.24 and 19 CFR §174.25. The protest and application for further review should not have been allowed. We are returning the protest file to your office for appropriate action.

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 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. Sixty days from the date of the
decision the Office of Regulations and Rulings 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,


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