Halloween Fleece Throws; Application for Further Review of Protest No. 2809-07-100793

HQ H022668 January 23, 2009 CLA-2 OT:RR:CTF:TCM H022668 RM CATEGORY: Classification TARIFF NO.: 9505.90.60 Port Director United States Customs and Border Protection 555 Battery Street, Room 319 San Francisco, CA 94111 RE: Halloween Fleece Throws; Application for Further Review of Protest No. 2809-07-100793 Dear Port Director: The following is our decision regarding the Application for Further Review ("AFR") of Protest No. 2809-07-100793, timely filed on behalf of Target Stores, a division of Target Corporation, concerning classification of certain fleece throws with a Halloween design under the Harmonized Tariff Schedule of the United States ("HTSUS"). FACTS: This Protest concerns two types of polyester fleece throws. One throw features designs of ghosts and the word "BOO" printed on the fabric (item No. 067120534); the other includes designs of spiders and spider webs (item No. 067120535). The throws measure approximately 52 x 70 inches and appear to be hemmed on all sides. Protestant included pictures of the throws in his submission. The merchandise was entered on various dates between August 8, 2006, and September 12, 2006, under heading 9505, HTSUS, which provides, in relevant part, for: "Festive articles." CBP liquidated the merchandise on various dates between June 22, 2007, and July 27, 2007, under heading 6301, HTSUS, which provides for: "Blankets and traveling rugs." This Protest was timely filed on December 18, 2007. ISSUE: Whether the fleece throws are classified as blankets, in heading 6301, HTSUS, or as festive articles, in heading 9505, HTSUS. LAW AND ANALYSIS: Initially, we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The Protest was timely filed within 180 days of liquidation of the first entry for entries made on or after August 8, 2006. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L.108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of Protest No. 2809-07-100793 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because 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. Specifically, Protestant submits that the merchandise satisfies the two-prong test for "festive articles" established in Midwest of Cannon Falls, Inc. v. United States, 122 F. 3d 1423 (Fed. Cir. 1997), and synthesized in Park B. Smith, Ltd. v. United States, 347 F. 3d 922 (Fed. Cir. 2003), and Wilton Industries, Inc. v. United States, 493 F. Supp. 2d 1294 (Fed. Cir. 2007), which requires both (1) that the article be closely associated with a festive occasion, and (2) that the article be used or displayed principally during a festive occasion such that use or display of the article at other times would be aberrant. Classification under the HTSUS is made in accordance with the General Rules of Interpretation ("GRIs"). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not require otherwise, the remaining GRIs may then be applied. The 2006 HTSUS provisions under consideration are as follows: 6301 Blankets and traveling rugs: 6301.40.00 Blankets (other than electric blankets) and traveling rugs, of synthetic fibers ... 9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: 9505.90 Other: 9505.90.60 Other ... On December 28, 2008, CBP issues its Guidance on Classification of Festive Articles. A copy is enclosed with this ruling. In that Guidance, we set forth our position regarding the classification of utilitarian articles with festive designs and/or motifs entered prior to February 3, 2007. It reads, in pertinent part: [U]tilitarian or functional articles with festive designs and/or motifs entered prior to February 3, 2007, shall be liquidated in Chapter 95, specifically in heading 9505, as festive articles, if: (1) the articles are closely related with a festive occasion, and (2) the articles are used or displayed principally during that festive occasion such that use or display at any other time would be aberrant. Applied to the instant case, we conclude that the fleece throws are festive articles of heading 9505, HTSUS. First, the articles are closely related with a festive occasion. CBP has previously determined that jack-o'-lanterns, ghosts, skeletons, black cats, witches, spiders, spider webs, and the word "BOO," are representations of accepted symbols for the recognized holiday of Halloween. See, e.g., HQ 961874, dated September 14, 1999, HQ 961042, dated May 4, 1999, NY N037288, dated September 11, 2008, and NY G88255, dated April 9, 2001. Here, one model features printed designs of ghosts and the word "BOO"; the other features spiders and spider webs. Second, the throws are used principally during a festive occasion. We acknowledge that the throws could be used at any time for protection against the cold. However, because of their festive design, their use during a time other than Halloween would be aberrant. HOLDING: By application of GRI 1, the Halloween throws are classified in heading 9505, specifically in subheading 9505.90.60, HTSUS, which provides for: "Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other." The 2006 column one, general rate of duty is: Free. Since reclassification of the merchandise as indicated above would result in a lower duty rate, you are instructed to ALLOW the Protest in full. In accordance with the Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade 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, Myles B. Harmon, Director Commercial and Trade Facilitation Division 2