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NY M80310




February 24, 2006

CLA-2:RR:NC:95:2:224 M80310

CATEGORY: CLASSIFICATION

TARIFF NO: 9504.90.6000

Ms. Francine Marcoux
Hampton Direct Inc.
350 Pioneer Drive
P.O. Box 1199
Williston, VT 05495

RE: The tariff classification of a tic-tac-toe game from China

Dear Ms. Marcoux:

In your letter dated February 3, 2006, you requested a tariff classification ruling. Color illustrations of the items were submitted with your ruling request.

The items are described as follows: a Jolly Christmas Tic-Tac-Toe, #52390 and Snow Family Ornaments, #50600. The first item, #52390, is a board game constructed of polyresin. The second item, #50600, is an assortment of four polyresin ornaments that together depict a snow family.

Although the Jolly Christmas Tic-Tac-Toe, #52390, is sold and marketed during the Christmas season, it is not an accepted symbol of Christmas. It has unlimited use during the winter, or any other, season.

The applicable subheading for the Jolly Christmas Tic-Tac-Toe game, item #52390, will be 9504.90.6000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for articles for arcade, table or parlor gamesparts and accessories thereof: other: other: chess, checkers, parchisi, backgammon, darts and other games played on boards of a special design, all the foregoing games and parts thereofpoker chips and dice. 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).

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.

With regard to the Snow Family Ornaments, Style 50600, from China, the classification of the merchandise, which is the subject of your request, 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 your merchandise 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 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, 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 above referenced file is hereby administratively closed.

If you have any questions regarding the above, contact National Import Specialist Tom McKenna at 646-733-3025.

Sincerely,

Robert B. Swierupski
Director,

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