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NY L87146




September 23, 2005

CLA-2-70:RR:NC1:126: L87146

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.29.2000; 7013.29.1000; 2103.30.4000

Ms. Patricia Pietzak
Tillen Farms
Metzger Specialty Brands
250 West 57th Street
Suite 2322
New York, NY 10107

RE: The tariff classification of mustard and drinking glasses from France

Dear Ms. Pietzak:

In your letter, dated August 25, 2005, you requested a tariff classification ruling regarding prepared mustard packed in drinking glasses from France.

You inquired regarding five different types of drinking glasses. Samples of all these glasses with the exception of one were submitted with your ruling request.

The drinking glasses covered by your ruling request include a clear 29 cl glass coffee mug and a 29 cl glass coffee mug that is painted white. A sample of the white coffee mug was submitted with your ruling request. Although a sample of the clear mug was not submitted, you indicated that the clear mug is identical to the white mug except for the fact that it is not painted.

The information which you submitted with your ruling request indicates that the value of each glass coffee mug is over thirty cents but not over three dollars

You ruling request also covers three “standard shape” printed drinking glasses. Each of these glasses is printed with a different image or group of images.

The “standard shape” glasses include a 20 cl drinking glass with a printed image of American Indians, a 29 cl drinking glasses with a printed image of butterflies and a 25 cl drinking glass with printed images of Halloween (witch on broom and cat, Jack-O’Lantern, etc.). Samples of each of these printed glasses – Indian, Butterfly and Halloween – were submitted with your ruling request.

The information which you submitted with your ruling request indicates that the value of the Indian drinking glass is not over thirty cents, and the value of the butterfly drinking glass is over thirty cents but not over three dollars.

The applicable subheading for the mustard will be 2103.30.4000, HTS, which provides for mustard flour and meal and prepared mustardprepared mustard. The rate of duty will be 2.8 cents per kilogram. However, the Harmonized Tariff Schedule of the United States has been modified by adding in numerical sequence the following superior text and subheading to subchapter III of chapter 99 to the HTS:

Articles the product of Austria, Belgium, Denmark, Finland, France, the Federal Republic of Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, or Sweden:

9903.02.38 Prepared mustard (provided for in subheading 2103.30.40).

Under this provision, the prepared mustard from France, classified under subheading 2103.30.4000, HTS, is subject to a 100 percent ad valorem rate of duty.

The applicable subheading for the white glass coffee mug, the clear glass coffee mug and the butterfly drinking glass will be 7013.29.2000, Harmonized Tariff Schedule of the United States (HTS), which provides for drinking glassesother: other: valued over thirty cents but not over three dollars each. The rate of duty will be 22.5 percent ad valorem.

The applicable subheading for the Indian drinking glass will be 7013.29.1000, Harmonized Tariff Schedule of the United States (HTS), which provides for drinking glassesother: other: valued not over thirty cents. The rate of duty will be 28.5 percent ad valorem.

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 Specialists Jacob Bunin at 646-733-3027 and Stanley Hopard at 646-733-3029.

Regarding the Halloween drinking glass, the classification of this merchandise involves a consideration of whether the merchandise may be classifiable in Chapter 95 as “festive.”

On June 29, 2005, a proposal to limit the court decisions in Park B. Smith, Ltd. V. United States, 25 Ct. Int’l Trade 506 (2001), affirmed in part, vacated in part, and remanded, 347 F. 3d 922 (Fed. Cir. 2003), rehearing denied (Fed. Cir. March 16, 2004), was published in the Customs Bulletin.

CBP will notify the public in the Customs Bulletin when the agency has completed its review of its position in light of comments received in response to this notice. In addition, there are currently pending several cases before the Court of International Trade involving the question of classification of merchandise as “festive” in Chapter 95 of the Harmonized Tariff Schedule of the United States.

Section 177.7 of the Customs Regulations (19 C.F.R. §177.7) provides that rulings will not be issued in certain circumstances. Specifically, § 177.7(b) reads, in pertinent part:

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.

As such, CBP will not issue a classification ruling with regard to the Halloween drinking glass at this time. The classification determination may be impacted by the agency’s position regarding the court decisions in Park B. Smith, supra. In addition, issuance of a classification ruling would be inconsistent with 19 C.F.R. §177.7(b), cited above.

The court cases currently pending in the Court of International Trade which may preclude issuance of a ruling on the subject merchandise include cases involving the classification of sweaters and blouses, textile and plastic bows, glassware, tableware and bakeware. See Michael Simons Designs, Inc. v. United States, Ct. No. 04-00537; Berwick Industries, Inc. v. United States, Ct. Nos. 98-12-03189, 96-01-00263, 99-01-000436, 99-03-00121, 99-03-00158, 99-06-00356, 98-09-02897, 97-05-00789, 97-06-00983, 97-08-01400, 96-12-0738, 96-05-01359, and 96-04-01197; Waterford Wedgwood USA, Inc. v. United States, Ct. Nos. 00-05-00215, 99-03-00133 and 99-11-00721; Cuthbertson Imports Inc. v. United States, Ct. No. 03-00846; and Wilton Industries, Inc. v. United States, Ct. Nos. 00-11-00528, 00-01-00218, 00-03-00014, 00-03-00015, 00-04-00193, 00-04-00194 and 00-04-00250.

If you wish, you may resubmit your request for a prospective ruling on the Halloween drinking glass after CBP issues a final determination with regard to its proposal to limit Park B. Smith, supra. However, in keeping with an importer’s responsibility to exercise reasonable care, you may wish to check the status of pending court cases involving the issue of classification of merchandise as “festive articles” of heading 9505, HTSUS, and assess the possible impact on the classification of your merchandise.

If you choose to resubmit your request for a ruling regarding the Halloween drinking glass, CBP will consider at that time whether pending cases before the Court of International Trade or the Court of Appeals for the Federal Circuit preclude issuance of a ruling.

The file on the Halloween drinking glass is hereby administratively closed.

If you have any questions regarding the above, contact National Import Specialists Jacob Bunin at 646-733-3027 and Alice Wong at 656-733-3026.

Sincerely,

Robert B. Swierupski
Director,

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