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NY H84284




August 14, 2001

CLA-2-95:RR:NC:SP:225 H84284

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000

Ms. Jenny Davenport
Wal Mart Stores, Inc.
702 Southwest 8th Street
Bentonville, AR 72716-0410

RE: The tariff classification of decorative articles for Easter from China

Dear Ms. Davenport:

In your letter dated July 26, 2001, you requested a tariff classification ruling.

Three samples of the “Fiber Optic Easter Tree” were submitted with your inquiry. The articles include an assortment of styles labeled A, B and C. The trees are composed of paper wrapped in wire with fiber optic branches bundled together in a plastic pot. The potted tree is designed for insertion into a polyresin base. All of the trees stand 18” tall and are electrically operated through the base of the unit. In style A, the tree sits inside a base that depicts a large decorated Easter egg with three white bunnies and pastel colored flowers surrounding the egg. Style B has a base that portrays a basket filled with spring colored flowers and features a large white bunny figure sitting astride the basket. Style C has colored Easter eggs within its branches and has a base that resembles a basket of spring colored flowers. Situated around the outside of the basket are more spring flowers, three white bunnies and a decorated Easter egg. When plugged in, the fiber optics light up the tree portion. You state in your letter that the articles will be sold for the Easter holiday. Your samples are being returned as requested.

It is the opinion of this office that Styles A and C are designed and marketed in a manner that satisfies the requirements for the festive article provision. We note that both products prominently display decorated Easter eggs as part of their design. Since decorated eggs are a symbol closely associated with Easter these items would qualify for the festive article provision.

In the case of Style B, however, the item bears no identifiable link with Easter but does impart seasonal qualities related to spring. Due to these features we are unable to offer a ruling at this time, as a case is currently pending before the court whose outcome could impact upon the classification of this product. The issue of the classification of certain articles with a festive or seasonal motif is presently before the United States Court of Appeals for the Federal Circuit in the matter of Park B. Smith v. United States, Court No. 96-02-00344. Section 177.7, Customs Regulations (19 CFR 177.7) provides that rulings will not be issued in certain circumstances. According to Section 177.7(b):

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 19 CFR 177.7(b), and as the classification of Style B is comparable to an issue presently pending in the Court of Appeals, we are unable to issue a classification ruling letter for this merchandise. Accordingly, we are administratively closing our file. You may submit another request after the court has issued its decision in the Park B. Smith case.

The applicable subheading for Style A and Style C of the “Fiber Optic Easter Tree” will be 9505.90.6000, Harmonized Tariff Schedule of the United States (HTS), which provides for festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Alice J. Wong at 212-637-7028.

Sincerely,

Robert B. Swierupski
Director,

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