United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2007 HQ Rulings > HQ H002853 - HQ H004642 > HQ H003030

Previous Ruling Next Ruling
HQ H003030




January 23, 2007

CLA-2 RR:CTF:TCM H003030 BtB

CATEGORY: CLASSIFICATION

Port Director
U.S. Customs and Border Protection
Branch E, Building 77
JFK International Airport
Jamaica, NY 11430

RE: Application for Further Review of Protest No. 4701-06-100691; Issues pending before the CAFC

Dear Port Director:

On October 30, 2006, you forwarded Protest No. 4701-06-100691, filed by counsel on behalf of Team Beans, LLC (“Team Beans”), to this office for further review. We have recently completed our review of this protest and are returning it to you, along with the sample that you forwarded, to be held in suspension pending a decision in the case cited below.

FACTS:

Protest No. 4701-06-100691, which included an Application for Further Review (“AFR”), was timely filed by Team Beans on September 21, 2006. The decision protested is the classification and rate and amount of duties chargeable on six entries of certain hats (described as “Santa hats”) made through JFK International Airport from November to December, 2005.

The entries at issue liquidated on respective dates from June to August, 2006, with the merchandise classified in subheading 6505.90.8090, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for: “Hats and other headgear, knitted or crocheted, or made up from lace, felt or other textile fabric, in the piece (but not in strips), whether or not lined or trimmed; hair-nets of any material, whether or not lined or trimmed: Other: Of man-made fibers: Other: Not in part of braid, Other: Other: Other.”

In the protest at issue, Team Beans asserts that the articles at issue are classified in subheading 9505.10.2500, 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: Christmas ornaments: Other: Other.”

ISSUE:

Does the AFR in Protest No. 4701-06-100691 satisfy the criteria for further review under 19 CFR §§174.24 and 174.25?

LAW AND ANALYSIS:

Section 174.24 of the Customs and Border Protection (“CBP”) Regulations (19 CFR §174.24) lists the criteria for granting an AFR. It states:

Further review of a protest which would otherwise be denied by the port director shall be accorded a party filing an application for further review which meets the requirements of 19 CFR §174.25 when the decision against which the protest was filed:

(a) 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;

(b) 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;

(c) 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

(d) 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.

In this matter, AFR was properly accorded because the decision against which the protest was filed 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. Protestant also complied with the requirements of 19 CFR §174.25 and, in that process, provided a “a statement of any facts or additional legal arguments, not part of the record, upon which the protesting party relies .”

While AFR was properly accorded in this matter, the issue presented in the instant protest, the classification of hats incorporating holiday motifs under heading 9505, HTSUSA, may be impacted by a case currently pending at the Court of Appeals for the Federal Circuit, Michael Simon Design, Inc. v. United States (CAFC Appeal No. 2007-1028). While the issue in that case is the classification of certain wearing apparel incorporating holiday motifs under heading 9505, HTSUSA, we believe that determinations made in that case may be applicable to the classification of hats and other articles worn on the body.

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(a) reads in pertinent part: “[N]o ruling letter will be issued in any instance in which it appears contrary to the sound administration of the Customs and related laws to do so.” Additionally, 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 therefrom.

In light of the pending case cited above, we find that we cannot issue a decision on the AFR in Protest No. 4701-06-100691 at this time. Consequently, we are temporarily returning the AFR to your office pending conclusion of the case cited above.

HOLDING:

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 Michael Simon Design, Inc. v. United States case. At that time, your office should rule on the protest in accordance with the judgment order of the CAFC, pursuant to 19 CFR §152.16. If the Court’s decision fails to definitively resolve the issue of the classification of the articles in issue 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
Commercial and Trade Facilitation Division

Previous Ruling Next Ruling

See also: