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NY K86673




July 6, 2004
CLA-2-70:RR:NC:1:126 K86673

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.5000, 9405.50.4000

Ms. Marcia Kissel
Family Dollar Stores, Inc.
P.O. Box 1017
Charlotte, North Carolina 28201

RE: The tariff classification of a decorative glass article and three candleholders from China

Dear Ms. Kissel:

In your letter dated June 8, 2004, you requested a tariff classification ruling regarding five glass articles. Representative samples of these items were submitted with your ruling request. Item #W72M0828 is being returned to you.

You stated in your letter that these five glass articles should be classified as either festive articles in heading 9505, Harmonized Tariff Schedule of the United States (HTS) or as non-electrical lamps and lighting fittings in subheading 9405.50, HTS, based upon the fact that they will be sold during the Christmas holiday season as candleholders.

Item #WRB0573/03 is a cylindrically-shaped, red-colored glass article that measures approximately 5 ¼ inches in height and 3 ½ inches in diameter at the opening. The rim of the opening is decorated with a painted gold stripe, gold leaf and glitter. You stated in your letter that this red glass article is not colored prior to solidification. The red color is a lacquer that is sprayed on the clear glass.

You indicated in your letter that the unit value of item #WRB0573/03 is over $0.30 but not over $3.00 each.

Although you indicated that this product will be marketed as a “candleholder", we do not regard this type of article as a candleholder because it has the form of a general-purpose article. It is not specifically dedicated to the function of a candleholder. This type of product is not principally used as a candleholder. A candle is only one of the numerous items that this product is capable of holding. Therefore, subheading 9405.50, HTS, does not apply to item #WRB0573/03. In addition, this product is not classifiable as a festive article in heading 9505, HTS. This article is not so associated with Christmas that its use at other times would be considered unusual behavior.

The applicable subheading for item #WRB0573/03 will be 7013.99.5000, HTS, which provides for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes: other glassware: other: other: valued over $0.30 but not over $3.00 each. The rate of duty will be 30 percent ad valorem.

Item # WRB0572/03 is a red-colored glass candleholder with a spherical-like body. The article measures approximately 3 ¼ inches in height, 3 ¼ in inches in diameter at the opening, 4 ¼ inches at its largest diameter and 2 ¼ inches at the base. The rim of the opening is decorated with a painted gold stripe, gold leaf and glitter.

Item #WRB0592/03 is a red-colored glass candleholder with a small hurricane lamp-shaped body. The article measures approximately 4 inches in height, 3 ¼ inches in width, and 3 inches in diameter at the top opening. The rim of the article is decorated with plastic berries and leaves.

Item #WRB0593/03 is a red -colored, round-shaped glass candleholder. The article measures approximately 2 ½ inches in height, 3 ½ inches at its largest diameter and 2 7/8 inches in diameter at the top. The rim of the article is decorated with plastic berries and leaves.

Items WRB0572/03, WRB0592/0 and WRB0593/03 are not classifiable as festive articles in heading 9505, HTS. None of these items are so associated with Christmas that their use at other times would be regarded as unusual behavior.

The applicable subheading for the three candleholders - item numbers WRB0572/03, WRB0592/03 and WRB0593/03 will be 9405.50.4000, HTS, which provides for other non-electrical lamps and lighting fittings, other. The rate of duty will be 6 percent ad valorem.

We are returning your request for a classification ruling on Item #W72M0828 because we are precluded from issuing a ruling letter by the provisions of Section 177.7(b) of the Customs Regulations (19 C.F.R. 177.7(b)). As stated in 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 Park B. Smith Ltd. v. United States, Court No. 96-02-00344, the United States Court of International Trade issued a decision on the scope of the term “festive articles.” The decision has been appealed (Court of Appeals No. 01-1578). Since the classification of Item #W72M0828, which is the subject of this request for a ruling, may be affected by the case before the Court in Park B. Smith, supra, we are precluded from issuing a ruling on the item.

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, Bureau of Customs and Border Protection, 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 Jacob Bunin at 646-733-3027.

Sincerely,

Robert B. Swierupski
Director,

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