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NY L85616




July 8, 2005

CLA-2-95:RR:NC:SP:225 L85616

CATEGORY: CLASSIFICATION

TARIFF NO.: 9504.90.9080; 4911.91.2040; 1704.90.3550

Ms. Barbara Y. Wierbicki
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, NY 10036-8901

RE: The tariff classification of an Easter Ring Pop from China.

Dear Ms. Wierbicki:

In your letter dated June 16, 2005, on behalf of The Topps Company, Inc., you requested a tariff classification ruling.

You submitted a sample of an Easter Ring Pop identified as product code number 571-06, which is being returned upon your request. The item consists of a plastic green egg that measures approximately 3” in height and 2” in diameter and opens into halves. Inside the egg is hard sugar candy in the form of a bunny or chick set on a molded plastic adjustable “ring”, a sticker sheet, and a game page. The candy will be comprised of three flavors: sour blue raspberry, strawberry and watermelon. The game page is a strip of coated paper with a game on each side of the strip (maze game and a word game). The printed sticker sheet is a 1-3/4” x 4-1/4” strip with images of a bunny, chick, eggs, etc.

The Explanatory Notes to the Harmonized Tariff System provide guidance in the interpretation of the Harmonized Commodity Description and Coding System at the international level. Explanatory Note X to GRI 3(b) states that the term "goods put up in sets for retail sale" means goods that: (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (b) consist of articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking.

The Easter Pop Ring is not considered to be a set for tariff classification purposes since the components are not put up together to meet a particular need or carry out a specific activity. Eating candy and playing games are different activities. Therefore, the contents must be classified separately.

The applicable subheading for the paper puzzle game page will be 9504.90.9080, Harmonized Tariff Schedule of the United States (HTS), which provides for Articles for arcade, table or parlor games...parts and accessories thereof: Other: Other...Other. The rate of duty will be Free.

The applicable subheading for the printed paper stickers will be 4911.91.2040, HTS, which provides for Printed pictures, designs and photographs: lithographs on paper or paperboard: not over 0.51 mm in thickness. The rate of duty will be Free.

The applicable subheading for ring pop candy will be 1704.90.3550, HTS, which provides for Sugar confectionery (including white chocolate), not containing cocoa: Other: Confections or sweetmeats ready for consumption: Other: Other...Put up for retail sale: Other. The rate of duty will be 5.6% ad valorem.

This merchandise is subject to The Public Health Security and Bioterroism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at telephone number (301) 575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.

We are unable to rule on the plastic colored egg at this time. 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.

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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