CBP Issues Classification/Protest Guidance on Textile and Non-Textile Festive Articles (In Light of its Proposal to Limit Park Decision)

(In its June 2005 proposal, CBP had explained that under the Court of Appeals for the Federal Circuit's (CAFC's) decision in Park, the table linen/rugs before the court with a symbolic content associated with a particular recognized holiday, such as Christmas trees, Halloween jack-o-lanterns, or bunnies for Easter, were classified as HTS Chapter 95 duty-free festive articles.

CBP had also explained that under Park, other table linens/rugs before the court that by their design and symbols, were directed to a specific festive holiday, and for which their use at times other than that holiday would be aberrant, were to be also classified as HTS Chapter 95 duty-free festive articles. See ITT's Online Archives 07/01/05 and 07/05/05 news, 05070110 and 05070515, for BP summaries of the CBP Bulletin notice on the proposal to limit the Park decision.)

Highlights of CBP's Guidance on Festive Articles

In light of CBP's June 2005 proposal and certain cases pending before the Court of International Trade (CIT), CBP has provided the following guidance:

CBP will not issue rulings on articles that may be impacted by proposal to limit Park. CBP states that it will not be issuing ruling on articles that may be impacted by its June 2005 proposal to limit Park until such a time as a final determination has been published and an effective date set. CBP notes that importers who are affected by CBP's may wish to take certain actions regarding liquidation of their merchandise (see below).

Utilitarian or functional textile and non-textile articles should not be classified in HTS Chapter 95 (except if ruling, see below). CBP states that as it is proposing to limit the court decisions in Park, utilitarian or functional articles, such as table linens, apparel, mugs, china, etc. should not be classified in HTS Chapter 95. Ports may accept classification and liquidate purely decorative articles, not otherwise excluded from HTS Chapter 95 or HTS 9505, as festive articles, if: (1) the articles are "closely associated" with a festive occasion and (2) the articles are displayed and used by the consumer only during the festive occasion (use at any other time would be aberrant).

In addition, CBP states that functional merchandise for which importers have binding rulings for [showing classification in HTS 9505] or for which importers are able to show that a [HTS 9505] ruling issued to another party applies to their merchandise, are to be classified and liquidated in HTS 9505.

CBP will not issue classification rulings on merchandise that would be impacted by seven pending court cases. CBP notes that there are seven pending court cases in the CIT involving the question of classification of various types of merchandise as "festive articles" of HTS 9505. CBP states that it will not issue classification rulings with regard to any merchandise which would be impacted by the decisions in these cases as well (See below for a listing and description of these pending CIT cases.)

Importers seeking classification of "festive articles" in HTS 9505 under Park or seven court cases may request suspension of liquidation or file protest. According to CBP, importers seeking classification as "festive articles" in HTS 9505 of merchandise which falls within the descriptions in this memorandum of merchandise subject to pending court cases or seeking classification of merchandise as "festive articles" in HTS 9505, based on the court decisions in Park, may request suspension of liquidation of their entries or may file protests against liquidation of their merchandise in provisions of the tariff schedule other than as "festive articles" of HTS 9505. CBP states that importers should be advised to use reasonable care in classifying their goods.

Seven Pending Court Cases Involving Classification of "Festive Articles"

As CBP noted above, there are seven court cases currently pending in the CIT which involve the issue of classification of various articles as "festive." These cases and the merchandise at issue are as follows:

LTD Commodities v. U.S. CBP states that this case involves paper-mache boxes, mugs, plates, table linens, basket sets, wooden baskets, porcelain handle baskets, oven mitts, potholders, cheese spreaders, flatware set, burner covers, bottle huggers, wood wall plaques, coasters and cozies, wooden reindeer, shelf sitters, breeze blockers, gift bag sets, candle and holder, jar lamps, boxes, pins, lawn signs, cornucopia or gourds, centerpieces, flags, wired ribbon, candleholder with shade, shade with base for use with candles, porcelain bisque votives and musical clock, lanterns, printed fabric and metallic boxes.

Nidico Group, Inc. v. U.S. According to CBP, this case involves jacquard placemats.

Michael Simons Designs, Inc. v. U.S. CBP notes that this case involves ladies' and girls' knit and woven sweaters and blouses.

Berwick Industries, Inc. v. U.S. CBP states that this case involves assorted plastic and textile bows (regular and oversized).

Waterford Wedgwood USA, Inc. v. U.S. CBP notes that this case involves crystal glassware, ceramic tableware, ornamental ceramic articles, lighting fixtures, table knives, music boxes, wood marquetry, etc. (e.g. bowls, platters, plates, mugs, cups, dinnerware place settings, figurines, bells, cake knives, candle holders, nativity backdrops, and display sets)).

Cuthbertson Imports Inc. v. U.S. CBP states that this case involves earthenware dinnerware (plates, bowls, teacups, saucers, cereal dishes, teapots, coffee pots, serving platters, oven-proof casseroles, rectangular baker-lasagna, etc.).

Wilton Industries, Inc. v. U.S. CBP states that this case involves cake and baking pans, cookie cutters, stamps and presses, cake bases, toppers, stands, pillars, ornaments, and cake separator plates, floral bouquets, candle caps and pins, and magnets.)

CBP memorandum (dated 06/28/05) available at http://www.cbp.gov/linkhandler/cgov/import/cargo_summary/guide_classification.ctt/guide_classification.doc

CBP Bulletin notice (Vol. 39, No. 27, dated 06/29/05) available at http://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2005/vol39_06292005_no27/