The tariff classification of a "Turkey Wind Spinner" from China.

NY J81677 March 14, 2003 CLA-2-95:RR:NC:SP:225 J81677 CATEGORY: Classification TARIFF NO.: 9505.90.6000 Mr. Joseph R. Hoffacker Barthco Trade Consultants, Inc. 7575 Holstein Avenue Philadelphia, PA 19153 RE: The tariff classification of a “Turkey Wind Spinner” from China. Dear Mr. Hoffacker: In your letter dated March 3, 2003, on behalf of Big Lots Stores, Inc., you requested a tariff classification ruling. You submitted a photograph of Item #JH38876, “Turkey Wind Spinner”, which consists of a turkey wearing a big buckled black pilgrim’s hat and a bow tie surrounded by 6 different colored leaves on tiny spokes. The turkey has a metal spike extending down from it for insertion into the ground. When the wind blows, it forces the turkey and the leaves to rotate. The item is made of nylon, plastic and steel and intended as a decoration for the Thanksgiving holiday. The turkey is an accepted symbol of Thanksgiving and the item is classifiable as a festive article in Chapter 95, Harmonized Tariff Schedule of the United States. The applicable subheading for Item #JH38876, “Turkey Wind Spinner”, 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 on Item #JH38878, “Scarecrow Wind Spinner”, which is a scarecrow surrounded by pumpkins. 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 #JH38878, “Scarecrow Wind Spinner.” Accordingly, we are administratively closing our file. When all litigation has been concluded on the case referenced above, you may resubmit your request for a ruling. 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. Sincerely, Robert B. Swierupski Director, National Commodity Specialist Division