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NY R01622




April 6, 2005

CLA-2-95:RR:NC:SP:225 R01622

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000

Mr. David Beja
Dba Beja Customhouse Brokers
2655 Turning Leaf Drive
Lawrenceville, GA 30044

RE: The tariff classification of festive articles from China.

Dear Mr. Beja:

In your letter dated March 16, 2005, on behalf of Evergreen Enterprises of Richmond, Virginia, you requested a tariff classification ruling.

You submitted the following photographs:

Assortment 2BM210, Metal Buddies, is an assortment that consists of item number 2BM210B, “Bat”, item number 2BM210G, “Ghost”, item number 2BM210P, “Pumpkin”, and item number 2BM210C, “Cat” that depicts three-dimensional standing metal figures with faces, arms, hands, legs, and feet. Each figure is attired in a hat, and is intended as a home decoration for the Halloween holiday.

Item number 2TC210, Pumpkin Trio Tealight, are three ceramic tealight candleholders in the shape of three-dimensional jack-o’-lanterns with cutouts for the eyes, noses, and mouths. When tealight candles are inserted (not included) the faces of the jack-o’-lanterns are illuminated. The candleholders are intended as home decorations for the Halloween holiday.

Item number 2OT210, Spooky Ornament Tree, is a metal stand in the shape of a tree with attached hanging ceramic ornaments in the shapes of jack-o’-lanterns, black cats, bats, and ghosts. The tree is intended as a home decoration for the Halloween holiday.

The applicable subheading for assortment 2BM210, Metal Buddies, item number 2TC210, Pumpkin Trio Tealight, and item number 2OT210, Spooky Ornament Tree, will be 9505.90.6000, 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: Other: Other." The rate of duty will be Free.

We are unable to issue a ruling on the Ceramic Luminaries without a sample of each item of the assortment (item number 2LC210G, 2LC210O, 2LC210Y, and 2LC210P).

We are also returning your request for a classification ruling for item number 2BC210, Halloween Buddies (“Spider Bowl”), and the Ceramic Candy Dishes (item number 2CC210C, “Cat”, item number 2CC210G, “Ghost”, item number 2CC210B, “Bat”, and item number 2CC210P, “Pumpkin”,) imported from China. We are also returning any related samples, exhibits, etc., 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 was appealed (Court of Appeals No. 01-1578). The case is on remand now to the CIT.

Since the classification of item number 2BC210, Halloween Buddies (“Spider Bowl”), and the Ceramic Candy Dishes (item number 2CC210C, “Cat”, item number 2CC210G, “Ghost”, item number 2CC210B, “Bat”, and item number 2CC210P, “Pumpkin”,) which are 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(s).

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 Alice Wong at 646-733-3026.

Sincerely,

Robert B. Swierupski
Director,

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