CLA-2 RR:CR:TE 967035 KSH
Port Director
Customs and Border Protection
3600 East Paisano
El Paso, Texas 79905
RE: Protest number 2402-02-100083; Ethicon, Inc. v. United States; Disposable surgical gowns, drapes and packs
Dear Port Director:
This is in reply to your memorandum dated February 15, 2004, concerning the Protest and Application for Further Review (AFR), Protest No. 2402-02-100083, filed by Meeks & Sheppard on behalf of their client, Johnson & Johnson Medical, Inc. FACTS:
The record reflects that on December 4, 1998, the protestant made one entry of disposable surgical gowns, drapes and packs. The protestant claimed classification of the articles under subheadings 4818.50.0000 and 4818.90.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provide for "articles of apparel and clothing accessories of paper pulp, paper, cellulose wadding or webs of cellulose fibers, and other articles of paper pulp, paper, cellulose wadding or webs of cellulose fibers not specifically provided for in other subheadings of heading 4818, HTSUS, respectively.
The disposable surgical gowns, drapes and packs were liquidated on September 6, 2002 under subheadings 6210.10.2000 and 6307.90.6000, HTSUS, which provide for “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Of fabrics of heading 5602 or 5603: Of fabrics formed on a base of paper or covered or lined with paper” and “Other made up articles, including dress patterns: Surgical drapes: Of fabric formed on a base of paper or covered or lined with paper”, respectively.
On December 3, 2002, the protestant timely filed the instant AFR contesting the classification, valuation and liquidation of the disposable surgical gowns, drapes and packs.
ISSUE:
Whether Protest 2402-02-100083 satisfies the criteria for further review under 19 CFR §174.24?
LAW AND ANAYLSIS:
The issue presented in the instant protest, the classification under headings 6210 and 6307, HTSUS, of disposable surgical gowns, drapes and packs, is currently pending in the Court of International Trade in the case of Ethicon Inc. v. United States, No. 1:02-cv-00117. We note that Ethicon, Inc. is the successor in interest to Johnson & Johnson Medical Division and Johnson & Johnson Medical Inc. We note that the remaining issues raised in the instant protest, i.e., the valuation and deemed liquidation of the subject entry, are dependent upon the resolution of the classification issue in the aforementioned litigation. 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 Ethicon, Inc. 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