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NY L84759




May 27, 2005

CLA-2-95:RR:NC:2:224 L84759

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0000

Mr. Randy Williams
Seasons, USA Inc.
18644 E. Powers Lane
Aurora, CO 80015

RE: The tariff classification of a Toy Bunny in a Bunny Egg from China

Dear Mr. Williams:

In your letter dated April 22, 2005, you requested a tariff classification ruling.

You submitted descriptive literature and a product sample with your request. The subject merchandise is described as a Toy Bunny in a Bunny Egg, style number 20088. The toy is a bendable bunny that is pink and white in color; the bunny is holding a carrot in its left hand. The toy is packaged and sold in a plastic egg with a bunny shape molded into the front part of the egg. The sample will be returned, as requested by your office.

The Bunny toy in the Bunny Egg, style number 20088, is considered a set for tariff purposes. No one heading in the tariff schedule covers these components in combination; GRI 1 cannot be used as a basis of classification. GRI 3 provides for goods that are, prima facie, classifiable in two or more headings. GRI 3 (b) provides that mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale shall be classified as if they consisted of the material or component which gives them their essential character.

Noting GRI-3 (b), the component that gives the set (the Bunny Toy in the Bunny Egg, style number 20088) its essential character would dictate the classification of the item. The bendable toy bunny would exemplify the essential character of the set. Therefore, the applicable subheading for the bendable bunny in a plastic egg, style 20088, will be 9503.49.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for toys representing animals or non-human creaturesand parts and accessories thereof: other. The rate of duty will be free.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

In regard to the 6 inch plastic 3D Bunny Egg Container (imported empty), style 20303, 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 ruling request for style 20303 only is closely related to the issue presently pending in the Court of Appeals, we are unable to issue a ruling letter to you with respect to Style 20303. Accordingly, we are administratively closing our file for Style 20303.

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.

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 Tom McKenna at (646) 733-3025.

Sincerely,

Robert B. Swierupski
Director,

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