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NY R03430




March 29, 2006

CLA-2-69:RR:NC:1:126 R03430

CATEGORY: CLASSIFICATION

TARIFF NO.: 6912.00.48

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

RE: The tariff classification of a ceramic tableware article from China

Dear Mr. Crago:

In your letter dated March 13, 2006, on behalf of your client, Walgreens, you requested a tariff classification ruling. A photograph depicting the product you wish to import was submitted with your ruling request.

The product in question is described as a “Christmas Toothpick Holder” – item number C075AA02653. You indicated in your letter that this article will be imported in two styles: snowman and Santa. Each toothpick holder is composed of ceramic (dolomite) and measures approximately 2.5 inches in diameter. Each style will be imported with wooden toothpicks measuring 2mm in diameter by 65mm in length. The article is intended to be placed on a table, countertop or the like.

The snowman toothpick holder is not an accepted symbol of Christmas. It has unlimited use during the winter season.

The applicable subheading for the ceramic snowman toothpick holder will be 6912.00.48, Harmonized Tariff Schedule of the United States (HTSUS), which provides for ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: tableware and kitchenware: other: other: other: other. The rate of duty will be 9.8 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.

 With regard to the Santa toothpick holder, item number C075AA02653, 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 Alice Wong at 646-733-3026.

Sincerely,

Robert B. Swierupski
Director,

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