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HQ 967337




April 11, 2005

CLA-2: RR:CR:TE 967337 ASM

Mr. Karl F. Krueger
Danzas Intercontinental
2660 20th Street
Port Huron, MI 48060

RE: Request for reconsideration of NY K88268; Classification of Elasticized armband

Dear Mr. Krueger:

This is in response to a letter, dated August 23, 2004, requesting reconsideration of Customs and Border Protection (CBP) New York Ruling Letter (NY) K88268, dated August 11, 2004, which classified an elasticized armband under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). No samples have been submitted to this office for examination.

NY K88268, identified the subject item as an elasticized armband constructed of man-made fabric ribbon. Affixed by staples to the armband is a cardboard circle, approximately 3 ¼ inches in diameter, with the words: “Kiss me I’m Irish”.

In NY K88268, the subject armbands were classified in subheading 6217.10.9530, HTSUSA, which provides for “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Other, Of man-made fibers”. You disagree with this classification and argue that the product is properly classified as a “festive article” of subheading 9505.90.6000, HTSUSA, which provides for ”Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other”.

You have asserted that the subject merchandise is properly classified as “festive articles” under Chapter 95, HTSUSA. The issue of whether certain textile goods are “festive articles” under Chapter 95, HTSUSA, is currently pending before the Court of International Trade (CIT). In the case of Park B. Smith, Ltd. v. United States, 2001 Ct. Intl. Trade LEXIS 71 (May 29, 2001), judgment was entered in part for the plaintiff. However, the CIT also agreed with the defendant that certain textile articles were not classifiable as “festive articles” under Chapter 95, HTSUSA. On appeal, the United States Court of Appeals for the Federal Circuit (CAFC) in Park B. Smith, Ltd. v. United States, 347 F.3d 922 (Fed. Cir. 2003), affirmed in part and vacated in part, the CIT’s decision, and the case was remanded for reapplication and determination as to whether some of the textile articles are classifiable as “festive articles” under Chapter 95, HTSUSA. Rehearing denied by Park B. Smith Ltd. v. United States, 2004 U.S. App. Lexis 6745 (Fed. Cir. Mar. 16, 2004).

Accordingly, Section 177.7, Customs Regulations (19 CFR Section 177.7) provides that rulings will not be issued in certain circumstances. Section 177.7(b) states, in pertinent part, as follows:

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 Section 177.7(b) and as the instant classification ruling request is closely related to the issue presently pending in the CIT, we are unable to issue a classification ruling letter to you with respect to the subject item. However, at this time, NY K88268, dated August 23, 2004, has already been issued and remains in effect.

In view of the foregoing, we are administratively closing our file. You may submit another request after the CIT issues its decision in the Park B. Smith case.

Sincerely,

Myles B. Harmon, Director

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