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NY H89308




March 15, 2002

CLA-2-95:RR:NC:SP:225 H89308

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000

Ms. Saralee Antrim-Saizan
Carmichael International Service
533 Glendale Boulevard
Los Angeles, California 90026-5097

RE: The tariff classification of a Witch’s Hand, an Electro Claw Storm Ball,™ a Halloween Traffic Lite, and a Cauldron Flame Lite™ from China.

Dear Ms. Antrim-Saizan:

In your letter dated March 5, 2002, on behalf of your client, Multi Media Electronics, you requested a tariff classification ruling.

You submitted the following samples:

Model #1401, Witch’s Hand, consists of a black plastic hand with long fingernails that measures approximately 7” in height and 4-1/2” in width. The hand is cut off at the wrist, which has a flattened end to stand the article upright on a tabletop. There is a socket in the middle of the open palm for the insertion of a type “A” 40-watt light bulb (not included). The fingers are molded to fit around the bulb and to extend above the bulb, creating a “clutching” effect. The item is described on the box as a “Halloween Edition” and will be marketed for sale and intended for use as a decorative article to help create a scary environment for Halloween.

Model #47522, Electro Claw Storm Ball,™ consists of a black plastic claw with long fingernails protruding from rocky ground that measures approximately 6” in height and 5” in width at its base and has a flattened end to stand the article upright on a tabletop. The claw clutches a glass ball that measures approximately 4” in diameter. When the unit is plugged in, and switched to the “on” position, a shaft in the center of the ball lights up and sends purple lasers to bounce off the inside of the glass ball. When switched to the “sound sensitive” setting, the lasers light up and respond to the sound of nearby voices.

Model #49005, Halloween Traffic Lite, is a rectangular shaped decorative article that measures approximately 15-1/2” in height and 6” in width and resembles a 3-light traffic signal, with a purple light at the top, orange light in the middle and a green light on the bottom. There is a silhouette of a traditional Halloween motif on the lens of each light: a bat on the purple lens, a jack-o-lantern grin on the orange lens and the head of a witch with witch’s hat on the green lens. When the unit is plugged in, the lights blink randomly.

Model #46105, Cauldron Flame Lite,™ consists of a black plastic cauldron with two handles that resembles a boiling pot, the type associated with witches, and measures approximately 12” in diameter and 8” deep. The unit features a small built-in fan in the cavity of the cauldron and two orange light bulbs at the mouth. When the unit is switched to the “on” position, the two orange light bulbs light up and the fan starts blowing a piece of silk fabric cut to resemble a flame, and held loosely by hook and loop tabs, up into the air. This creates the illusion of real flames “dancing” in the breeze.

In classifying the merchandise, we refer to the case of Midwest of Cannon Falls vs. U.S. 96-1271, -1279, where certain articles were determined by the court to fall within the scope of Heading 9505. Items traditionally used in celebration of and for entertainment on a given holiday qualified as a festive article provided certain requirements were met. Factors warranting consideration in making this determination included, among other things, the intended use of the product, relationship to a recognized holiday, basic physical characteristics and marketing of the merchandise. Upon examination of the items described above, it is our opinion that these articles are constructed in a manner that dedicates their use with the holiday of Halloween. Furthermore, the expectation of the ultimate purchaser, the channel of trade and the environment of sale all indicate that these items are intended to be sold and used in conjunction with said holiday. Therefore, this office concludes that the instant products will qualify as festive articles of Chapter 95.

The applicable subheading for Model #1401, Witch’s Hand, Model #47522, Electro Claw Storm Ball,™ Model #49005, Halloween Traffic Lite, and Model #46105, Cauldron Flame Lite,™ 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 thereof: other: other. The rate of duty will be free.

We are unable to rule on your other submitted sample, Model #1552, Illuminated Flashing Halloween Safety Reflector, which is neither a toy nor a decoration, but an article of personal adornment.

The issue of the scope of the term “festive articles” of personal adornment under 9505 is currently pending before the United States Court of Appeals for the Federal Circuit in the matter of Russ Berrie & Company V. United States, Court of Appeals No. 00-01-00018. Section 177.7, Customs Regulations (19 CFR 177.7) provides that rulings will not be issued in certain circumstances. Section 177.7(b) states, in pertinent part, the following: 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 instant classification ruling request is closely related to the issue presently pending in the Court of Appeals, we are unable to issue a classification ruling letter to you with respect to Model #1552, Illuminated Flashing Halloween Safety Reflector. Accordingly, we are administratively closing our file.

When all litigation has been concluded on the case referenced above, you may resubmit your request for a ruling. If you decide to resubmit your request, please include all materials that we have returned to you and mail your request to Director, National Commodity Specialist Division, U.S. Customs Service, Attn: CIE/Ruling Request, One Penn Plaza, 10th Floor, New York, NY 10119.

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 Wong at 646-733-3026.

Sincerely,

Robert B. Swierupski
Director,

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