Application for Further Review of Protest No. 2704-12-101156; classification of synthetic fiber throw blankets

U.S. Customs and Border Protection HQ H305269 May 15, 2020 OT:RR:CTF:CPMM H305269 KSG CATEGORY: Classification TARIFF NO.: 6301.40.00 Port Director Port of Los Angeles U.S. Customs and Border Protection 301 E. Ocean Blvd. Long Beach CA RE: Application for Further Review of Protest No. 2704-12-101156; classification of synthetic fiber throw blankets Dear Port Director: This is in response to the Application for Further Review of Protest Number 2704-12-101156, filed on March 22, 2012, by Ashford Textiles LLC (Protestant), contesting Customs and Border Protection's (CBP) classification and liquidation of synthetic fiber throw blankets in heading 6304 of the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: This case involves the November 20, 2011, entry of 1,040 synthetic fiber throw blankets bearing a nativity scene. The blankets are 50 x 60 inches and depict a Christmas nativity scene. There is an angel across the top of the blanket with its wings and arms spread looking down upon baby Jesus in a manger. ISSUE: Whether the throw blanket depicting a Christmas nativity scene is classified in heading 6301, HTSUS, as a blanket or in heading 9505, HTSUS as a festive article? LAW AND ANALYSIS: 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 otherwise require, the remaining GRIs 2 through 6 may then be applied in order. . The HTSUS headings under consideration are the following: 6301 Blankets and traveling rugs: 6301.40 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: Chapter 95, Note 1(w) excludes from chapter 95: "Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material) (formerly numbered at Note 1(v)). The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 63.01 states, in relevant part, that heading 63-1 covers the following: Blankets and travelling rugs are usually made of wool, animal hair, cotton or manmade fibres, frequently with a raised pile surface, and generally of thick heavytexture material for protection against the cold. The heading also covers rugs and blankets for cots or prams.   EN 95.05 states, in relevant part, that heading 9505 covers the following:(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include:(1) Festive decorations used to decorate rooms, tables, etc. (such as garlands, lanterns, etc.); decorative articles for Christmas trees (tinsel, coloured balls, animals and other figures, etc); cake decorations which are traditionally associated with a particular festival (e.g., animals, flags).(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees, nativity scenes, nativity figures and animals, angels, Christmas crackers, Christmas stockings, imitation yule logs, Father Christmases. …The heading also excludes articles that contain a festive design, decoration, emblem or motif and have a utilitarian function, e.g., tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen. To be classified as “festive” under chapter 95, HTSUS, an article must satisfy two criteria: (1) It must be closely associated with a festive occasion and (2) the article is used or displayed principally during that festive occasion. See Park B. Smith, Ltd. V. United States, 347 F.3d 922, 927-29 (Fed. Cir. 2003) (citing Midwest of Cannon Falls v. United States, 122 F.3d 1423, 1427-29 (Fed. Cir. 1997)). If the use or display of the article at other times would not be “aberrant” then it does not satisfy the criteria for "festive” articles under chapter 95, HTSUS. Park B. Smith, 347 F.3d at 929. The protestant cites to Headquarters Ruling Letter (HQ) H022668, dated January 23, 2009, which classified a Halloween theme throw blanket in heading 9505, HTSUS. However, this Headquarters Ruling was expressly limited to goods entered prior to February 3, 2007. In 2007, Chapter 95 was amended by Presidential Proclamation 8097, 72 Fed. Reg. 453 (Jan. 4, 2007), to add Chapter Note 1(v), now numbered at Chapter Note 1(w), which excludes from Chapter 95, various utilitarian items, including bed linens. The goods in the instant case were entered in 2011 so HQ H02266 is inapplicable. In HQ H127977, dated June 28, 2011, CBP ruled that Halloween themed photograph holders are precluded from classification in heading 9505 pursuant to Chapter Note 1(v), HTSUS because they have a utilitarian function. In HQ H127977, CBP defined the term “utilitarian” for the purposes of festive articles to be “not a purely decorative article: a utilitarian article serves some useful purpose.” The throw blanket is a similar article to bed linen, which is precluded from classification in heading 9505. Although it contains a festive design, the throw blanket is not decoration for a room. It is an article with a utilitarian function; it is used as a blanket to provide warmth. Therefore, we find that the throw blanket is excluded from classification in Chapter 95 by Chapter Note 1(w), HTSUS. Furthermore, since the ENs only provide commentary on the scope of the headings, their mention of nativity scenes cannot possibly expand the heading to include that which is excluded by the legal text. Therefore, in accordance with Chapter Note 1(w), Chapter 95, HTSUS, the throw blanket is classified according to its constituent material. CBP correctly classified the throw blanket in subheading 6301.40.00, HTSUS, as a blanket of synthetic material. HOLDING: Pursuant to GRIs 1 and 6, the throw blanket is classified under subheading 6301.40.00, HTSUS, which provides for " Blankets and traveling rugs: Blankets (other than electric blankets) and traveling rugs, of synthetic fibers." The column one general rate of duty is 8.5% ad valorem. You are instructed to DENY the protest.  In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing of the decision.  Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution.              Sincerely, Craig T. Clark Director, Commercial and Trade Facilitation Division