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NY R01161




December 29, 2004

CLA-2-94:RR:NC:1:108 R01161

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.50.4000

Mr. Troy D. Crago
Atico International, USA
501 South Andrews Avenue
Fort Lauderdale, FL 33301

RE: The tariff classification of glass candleholders from China or Taiwan.

Dear Mr. Crago:

In your letter dated December 6, 2004, you requested a tariff classification ruling.

The subject merchandise, based on the submitted information, consists of spherical glass candleholders with metallic finishes, item number W074TA05499, which are stated to measure 2 ½ inches in height by 2 ¼ inches across their open-top diameter. These candleholders, which are designed for tealight candles (not included), feature exteriors depicting the following designs: an ice-skating snowman, a scene of ice-skating snowmen, a snowy-winter village scene, Santa in sleigh pulled by reindeer, a snowman in blue outline, a snowy-winter church scene, a colorful snowman, and Santa with presents. The applicable subheading for these decorative glass candleholders (item number W074TA05499), excluding the holders with the above Santa designs, will be 9405.50.4000, Harmonized Tariff Schedule of the United States (HTS), which provides for other non-electrical lamps and lighting fittings, other. The rate of duty will be 6 percent ad valorem.

You believe that the candleholders depicting the designs of Santa in sleigh pulled by reindeer and Santa with presents should be classified under heading 9505, Harmonized Tariff Schedule of the United States (HTS), which provides for Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof.

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). The case is on remand now to the CIT. 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 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 the candleholders depicting the designs of Santa in sleigh pulled by reindeer and Santa with presents.

When all litigation has been concluded on the case referenced above, you may resubmit your request for a ruling in regard to these candleholders. 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 Michael Contino at 646-733-3014.

Sincerely,

Robert B. Swierupski
Director,

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