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NY I84465




August 1, 2002

CLA-2-33:RR:NC:2:240 I84465

CATEGORY: CLASSIFICATION

TARIFF NO.: 3304.99.5000

Ms. Gracela DeAlcon
Wal Mart Stores, Inc.
702 Southwest 8th Street
Bentonville, AR 72716-8023

RE: The tariff classification of a Novelty Holiday Lotion, Item Number WMU-02-16A, WMU-02-16B and WMU-02 –16C from China

Dear Ms. DeAlcon:

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

A sample of the Novelty Holiday Lotion, Item Number WMU-02-16A, WMU-02-16B and WMU-02 –16C was submitted with your inquiry, and is being returned to you as requested. The product is a skin lotion packaged in a novelty holiday snowman container. The Novelty Holiday snowman container is not a specially shaped or fitted container within the meaning of GRI 5(a), nor is it considered the normal packaging for skin lotion under GRI 5(b). The container, which resembles a holiday snowman is designed for product appeal to attract consumers while the contents are being consumed, and afterwards, rather than as a simple container for packing skin lotion. The skin lotion and novelty holiday container will be separately classified.

The applicable subheading for the skin lotion will be 3304.99.5000, Harmonized Tariff Schedule of the United States (HTS), which provides for Beauty or make-up preparations for the care of the skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations: Other: Other: Other. The rate of duty is free.

Perfumery, cosmetic and toiletry products are subject to the requirements of the Federal Food, Drug and Cosmetic Act, which is administered by the U.S. Food and Drug Administration. You may contact them at 5600 Fishers lane, Rockville, Maryland 20857.

We are returning your request for a classification ruling on the novelty holiday container and any related samples, exhibits, etc., because we are precluded from issuing a ruling letter by the provisions of Section 177.7(b) of the Customs Regulations (19 C.F.R. 177.7(b)). As stated in Section 177.7(b), "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 Park B. Smith Ltd. v. United States, Court No. 96-02-00344, the United States Court of International Trade issued a decision on the scope of the term “festive articles.” The decision has been appealed (Court of Appeals No. 01-1578). Since the classification of the novelty holiday bottle, which is the subject of this request for a ruling may be affected by the case before the Court in Park B. Smith, supra, we are precluded from issuing a ruling on the item(s).

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 Stephanie Joseph at 646-733-3268.

Sincerely,

Robert B. Swierupski
Director,

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