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HQ 967713




June 27, 2005

CLA-2 RR:CR:TE 967713 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 4292.92.1000; 4202.92.4500

Port Director
Customs and Border Protection
6747 Engle Road
Middleburg Heights, OH 44130

RE: Protest Number 4103-04-100205; Ross Products Division, Abbott Laboratories v. United States; Summons: 05-00323, Diaper Bag: Insulated Food or Beverage Bag: Travel Bag

Dear Port Director:

This is in reference to the Protest and Application for Further Review (AFR), Protest No. 4103-04-100205, filed by Ms. Susie Hoeger, Director, Customs and Trade Compliance, Ross Products Division of Abbott Laboratories. It was forwarded to our office on June 15, 2005.

FACTS:

The record reflects that four entries of insulated baby bags, commonly known as diaper bags, were made by protestant between October 14, 2003 and October 21, 2003. The protestant claimed classification of the articles under subheading 4202.92.1000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for “insulated food or beverage bags" with outer surface of sheeting of plastic or of textile materials, other.

The bags were liquidated on August 27, 2004, and September 3, 2004, under subheadings 4202.92.4500, HTSUSA, which provides for “travel, sports and similar bags”.

On October 4, 2004, the protestant timely filed the instant AFR contesting the classification, valuation and liquidation of the bags.

ISSUE:

Whether Protest 4103-04-100205 satisfies the criteria for further review under 19 CFR §174.24?

LAW AND ANAYLSIS:

The issue presented in the instant protest, the classification under heading 4202, HTSUS, of insulated diaper bags for temporary storage of expressed breast milk, infant formula, and related products, is currently pending in the Court of International Trade in the case of Ross Products Division, Abbott Laboratories v. United States, Summons No. 05-00323.

Part V of the Customs Protest/Petition Processing Handbook explains the procedures to be followed when a protest is filed that involves issues which are pending in the Court of International Trade. It reads in pertinent part:

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.

If after review of a protest where a test summons pending before the CIT is cited as the basis for the protest, the review team determines it is a valid claim, the entry unit must enter the test summons number into the "Test Summons No." data field, enter "S" for suspension into the "Protest Status" field, the date in the “Date” field, and enter process status code “SU2” (PMAC).

Moreover, Section 177.7 of the Customs Regulations (19 C.F.R. §177.7) provides that rulings will not be issued in certain circumstances. Section 177.7(b) reads in pertinent part:

No 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 there from.

In light of the prohibition set out in Part V of the Customs Protest/Petition Processing Handbook and in 19 C.F.R. §177.7(b), we are unable to rule on the AFR at this time.

HOLDING:

In accordance with section V of the Customs Protest/Petition Processing Handbook, we are administratively closing our file and referring the matter back to your office to be held in suspension pending the court’s determination in the Ross Products Division, Abbott Laboratories case. At that time, your office should rule on the protest in accordance with the judgment order of the CIT, pursuant to 19 CFR §152.16. If the Court’s decision fails to definitively resolve the issue of the classification of the articles herein, i.e., questions remain regarding application of the court’s decision to the instant merchandise, then forward the protest and AFR to this office for resolution at that time.

Sincerely,

Myles B. Harmon, Director

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