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NY I80678

April 23, 2002

CLA-2-95:RR:NC:SP:222 I80678


TARIFF NO.: 9505.10.2500

Mr. Joseph R. Hoffacker
Barthco Trade Consultants
7575 Holstein Avenue
Philadelphia, PA 19153

RE: The tariff classification of Christmas decorations from China.

Dear Mr. Hoffacker:

In your letter dated April 9, 2002, on behalf of your client Big Lot Stores, Inc., you requested a classification ruling.

The submitted photograph depicts four samples of Christmas spike decorations. They are identified as assortment number XMD8003. The 41” steel Christmas spikes are designed with a hanging hook on the top. The assortment of Christmas spikes depicts a Santa, a snowman wearing a Santa type hat and a scarf and a snowman wearing a Santa type hat, holding a red and white striped candy cane. Each spike has a “Welcome” sign. The fourth spike includes three snowmen standing together with a sign that reads “Let It Snow”. They are wearing hats and scarves. This item is not considered to be a festive article of Chapter 95.

The applicable subheading for the Christmas spikes featuring Santa, the snowman wearing a Santa type hat and the snowman holding a candy cane, will be 9505.10.2500, Harmonized Tariff Schedule of the United States (HTS), which provides for articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: Other. The rate of duty will be free.

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 assortment number XMD8003, three snowmen standing above the sign that reads “Let It Snow”. Accordingly, we are administratively closing our file.

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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