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NY I87973

November 19, 2002

CLA-2-95:RR:NC:SP:225 I87973


TARIFF NO.: 9505.90.6000

Ms. Alice Liu
Atico International USA, Inc.
501 South Andrews Avenue
Ft. Lauderdale, FL 33301

RE: The tariff classification of candy holders and figurines from China.

Dear Ms. Liu:

In your letter dated October 23, 2002, you requested a tariff classification ruling.

You submitted the following samples and photographs:

Item #W79P3000, Paper Mache Halloween Candy Holder, consists of an assortment of three circular shaped three-dimensional ghost candy holders (a, b, c) made primarily of papier-maché and talcum powder. The holders measure approximately 5 inches in height and 5-1/2 inches in diameter and have metal handles.

Item #W79F6002, Paper Mache Halloween Figurine, consists of an assortment of four three-dimensional figurines wearing masks (a) Cat with orange mask; (b) Scarecrow with black mask; (c) Ghost with purple mask; (d) Witch with green mask that measure approximately 6 inches in height and 3-1/2 inches in width. The cat is a black cat and the scarecrow has a jack-o-lantern head.

The applicable subheading for Item #W79P3000, Paper Mache Halloween Candy Holder, and Item #W79F6002, Paper Mache Halloween Figurine, 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 rule at this time on Item #W79H3000, Paper Mache Halloween Tea Light Holder, and Item #W79F6004, Paper Mache Halloween Photo Frame, which are functional non-3D articles.

The issue of the scope of the term “festive articles” under 9505 is currently pending before the United States Court of Appeals for the Federal Circuit in the matter of Park B. Smith Ltd. V. United States, Court of Appeals No. 01-1578 (cross appeal # 01-1586). Section 177.7, Customs Regulations (19 CFR 177.7) provides that rulings will not be issued in certain circumstances. Section 177.7(b) states, in pertinent part, the following:

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 light of the prohibition set out in 19 CFR 177.7(b), and as the instant classification ruling request is closely related to the issue presently pending in the Court of Appeals, we are unable to issue a classification ruling letter to you with respect to Item #W79H3000, Paper Mache Halloween Tea Light Holder, and Item #W79F6004, Paper Mache Halloween Photo Frame.

When all litigation has been concluded on the case referenced above, you may resubmit your request for a ruling on these items. 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, U.S. Customs Service, 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.


Robert B. Swierupski

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