Protest number 1101-03-100225; Park B. Smith Ltd. v. United States; Festive Articles

HQ 966751 December 11, 2003 CLA-2 RR:CR:TE 966751 KSH CATEGORY: Classification TARIFF NO.: 3926.90.9880; 3924.90.1050 Port Director Customs and Border Protection 2nd and Chestnut Streets Philadelphia, PA 19106 RE: Protest number 1101-03-100225; Park B. Smith Ltd. v. United States; Festive Articles Dear Port Director: This is in reply to your memorandum dated September 9, 2003, concerning the Protest and Application for Further Review (AFR), Protest No. 1101-03-100225, filed by Unique Industries, Inc.FACTS:  The record reflects that on May 31, 2002, and July 31, 2002, the protestant made two entries of plastic peel-off window clings consisting of leaves, cornucopias and turkeys and a falling leaves plastic cover. The protestant claimed classification of the articles under subheading 9505.90.6000, HTSUS, which provides for festive, carnival or other entertainment articles. The plastic peel-off window clings were liquidated on April 11, 2003 under subheading 3926.90.9880, HTSUS, which provides for other articles of plastic and articles of heading 3901 to 3914. The Falling Leaves plastic cover was liquidated on June 13, 2003 under subheading 3924.90.1050, HTSUS, which provides for other tableware, kitchenware, and household articles of plastic, table covers. Thereafter, on July 3, 2003, the protestant timely filed the instant AFR contesting the classification and liquidation of the window cling and table covers. ISSUE: Whether Protest 1101-03-100225 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 9505, HTSUSA, of articles that incorporate holiday or seasonal motifs, is currently pending upon remand from the Court of Appeals for the Federal Circuit (Park B. Smith, Ltd. v. United States No. 01-1578, -1586, 2003 U.S. App. LEXIS 21390 (C.A.F.C. October 21, 2003)) in the Court of International Trade in the case of Park B. Smith, Ltd. v. United States, No. 96-02-00344. 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 therefrom. 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 Park B. Smith 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 Commercial Rulings Division