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HQ 966746

December 10, 2003

CLA-2 RR:CR:TE 966746 KSH


TARIFF NO.: 3307.90.0000

Interim Port Director
Customs and Border Protection
Los Angeles/Long Beach Area
300 S. Ferry Street
Terminal Island, CA 90731

RE: Protest number 2704-03-100342; 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. 2704-03-100342, filed by Bath and Body Works, Inc.


The record reflects that on August 30, 2002, the protestant made an entry of textile articles in the shape of a tree, scented and dyed in dark colors with a plaid pattern. The Protestant classified the articles under subheading 9505.10.2500, HTSUS, which provides for other Christmas ornaments and is free of duty and free of quota/visa requirements.

On November 6, 2002, CBP issued a Notice of Action informing the protestant that the articles had been rate advanced. The Notice notified protestant that the articles were classified under subheading 3307.90.0000, HTSUS, which provides for, among other things, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties. The new corresponding duty rate was 5.4% ad valorem.

Thereafter, on February 11, 2003, the protestant timely filed the instant AFR contesting the classification of the articles and the rate advance.


Whether the Protest and AFR 2704-03-100342 satisfies the criteria for further review under 19 CFR §174.24?


The issue presented in the instant protest, the classification under heading 9505, HTSUSA, of textile 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:


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.


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 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.


Myles B. Harmon, Director
Commercial Rulings Division

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