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NY M80346





March 10, 2006

CLA-2-69:RR:NC1:126: M80346

CATEGORY: CLASSIFICATION

TARIFF NO.: 6913.90.5000

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

RE: The tariff classification of ornamental ceramic articles from China

Dear Ms. Marcoux:

In your letter, dated February 10, 2006, you requested a tariff classification ruling regarding two decorative ceramic articles (#50620) used as candle jar toppers.

You also requested a ruling regarding two porcelain Christmas mugs (#54160 and 54162). One mug depicts Santa Claus and the other depicts a snowman holding a wreath.

Photographs of the products were submitted with your ruling request.

The ornamental ceramic articles are referred to as “Snowmen Candle Jar Toppers.” These items are in the form of decorative snowman heads. They can function as the tops of candle jars

One of these articles has the form of a snowman head with a yellow cloche. This item measures approximately four inches in length by 3.5 inches in width by four inches in height.

The second article has the form of a snowman head with a red toque. This item measures approximately 3.75 inches in length by 3.5 inches in width by five inches in height.

You stated that the snowmen toppers do not have FDA approval for use in conjunction with food. You stated that these items will not be used as table/kitchen articles.

You indicated that the snowmen toppers are composed of dolomite ceramics.

The applicable subheading for the ornamental ceramic snowmen heads which may be used as candle jar toppers will be 6913.90.5000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for statuettes and other ornamental ceramic articles: other: other: other. The rate of duty will be 6 percent ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

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 Jacob Bunin at 646-733-3027.

We are unable to issue a ruling on the Christmas mugs as the classification of this merchandise involves a consideration of whether the products 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.

Therefore, CBP will not issue a classification ruling with regard to the Christmas mugs 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 Christmas mugs 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 file on the Christmas mugs is hereby administratively closed.

If you have any questions regarding the above, contact National Import Specialist Alice Wong at 646-733-3026.

Sincerely,

Robert B. Swierupski
Director,

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