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NY I83652




June 21, 2002

CLA-2-96:RR:NC:SP:221 I83652

CATEGORY: CLASSIFICATION

TARIFF NO.: 9608.10.0000

Ms. Marjorie Shapiro
Samuel Shapiro & Company, Inc.
The Corn Exchange Building
Suite 400
123 Chestnut Street
Philadelphia, PA 19106

RE: The tariff classification of pen necklaces and glow necklaces from China.

Dear Ms. Shapiro:

In your letter dated June 14, 2002, on behalf of Unique Industries, Inc., you requested a tariff classification ruling.

Item 87961 is a ball point pen shaped to resemble a witch. It is suspended on a cord so that it can be worn around the neck. Item 8778/8779 is a molded plastic skeleton head on a neck cord. The head will incorporate a glow device.

The applicable subheading for the pen will be 9608.10.000, Harmonized Tariff Schedule of the United States (HTS), which provides for ball point pens. The rate of duty will be 0.8 cents each plus 5.4 percent ad valorem.

We are unable to rule on the classification of the skeleton glow necklace. 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 (b) of the Customs Regulations (19 CFR 177.7 (b)) states that “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 rule on the classification of the glow necklace. The sample of this product is being returned to you.

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, including the sample, 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 Joan Mazzola at (646) 733-3023.

Sincerely,

Robert B. Swierupski
Director,

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