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NY N004221





December 15, 2006

CLA-2-95: RR: N2: 225

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000

Ms. Holly VanDeusen
13000 Darice Parkway, Park 82
Strongsville, OH 44149-3800

RE: The tariff classification of decorative festive articles from China.

Dear Ms. VanDeusen:

In your letter dated December 1, 2006, on behalf of your customer, Lamrite West Inc., you requested a tariff classification ruling.

You submitted the following samples:

Item 3100-910, Jack-O’-Lantern Pumpkin With Plate, consists of a ceramic jack-o’-lantern that measures approximately 2-3/4” in height and an orange ceramic saucer-like stand that measures approximately ½” in height and 3-3/4” in diameter, with a depression in its center to accommodate the jack-o’-lantern. The jack-o’-lantern has an opening in back for insertion of a candle (not included), which when inserted and lit, shines light through openings in the jack-o’-lantern’s eyes, nose and mouth. The Jack-O’-Lantern Pumpkin With Plate, is not a functional candleholder, but a purely decorative article that allows light to shine through from an inserted candle to illuminate the jack-o’-lantern’s face and help create a scary environment for the Halloween holiday.

Item 310-912, 3 Inch Candle Holder Boo Ghost, is a ceramic ghost that measures approximately 3” in height x 2” in diameter at its base. The ghost has an opening in back for insertion of a candle (not included), which when inserted and lit, shines light through openings in the ghost’s eyes, nose and mouth, and also shines light through a star cutout on top of the ghost’s head and the word “Boo!” on the ghost’s abdomen. The 3 Inch Candle Holder Boo Ghost is not a functional candleholder, but a purely decorative article that allows light to shine through from an inserted candle to illuminate the ghost’s face and the word “Boo!” to help create a scary environment for the Halloween holiday.

The applicable subheading for item 3100-910, Jack-O’-Lantern Pumpkin With Plate, and item 310-912, 3 Inch Candle Holder Boo Ghost, will be 9505.90.6000, Harmonized Tariff Schedule of the United States (HTSUS), 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. 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/.

We are unable to rule on item 317-007, Wood/Tin Hat Votive Holder, and the “SPShamrocks” Salt & Pepper Set and the “SPGhosts” Salt & Pepper Set (no item numbers), which are functional articles, as 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.”

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 court cases currently pending in the Court of International Trade. 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 the appropriate court cases have been resolved. The above referenced file is hereby administratively closed.

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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