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NY I82860





June 12, 2002

CLA-2-95:RR:NC:SP:225 I82860

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000

Ms. Jenny Davenport
Wal*Mart Stores, Inc.
Mail Stop #0410 – L - 32
601 N. Walton
Bentonville, AR 72716-0410

RE: The tariff classification of a Pumpkin Man from China.

Dear Ms. Davenport:

In your letter dated May 29, 2002, you requested a tariff classification ruling.

The sample submitted, Style #C700, Pumpkin Man, is a stuffable pumpkin figure with a jack-o-lantern head that is made of plastic and measures approximately 6 feet in height. The pumpkin figure is dressed in an orange and black checkerboard shirt and black pants and has wire/paper ties at the end of its wrists and ankles in lieu of hands and feet. The pumpkin figure is stuffed with paper (or leaves), and can be positioned in a chair or a tree or hung from a pole as an outdoor decoration for the Halloween holiday.

The applicable subheading for Style #C700, Pumpkin Man, 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 issue a ruling on Style #E423-S-A, Scarecrow, at this time.

The issue of the scope of the term “festive articles” under 9505 is currently pending before the United States Court of Appeals for the Federal Circuit in the matter of Park B. Smith Ltd. V. United States, Court of Appeals No. 01-1578 (cross appeal # 01-1586). 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 Style #E423-S-A, Scarecrow. 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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