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NY J81579

March 11, 2003

CLA-2-95:RR:NC:SP:225 J81579


TARIFF NO. 9505.10.1000

Mr. Donald A. Keller
O’Neill & Whitaker, Inc.
1809 Baltimore Avenue
Kansas City, MO 54108

RE: The tariff classification of mini Christmas glass waterballs from China.

Dear Mr. Keller:

In your letter dated February 20, 2003, on behalf of your client Demdaco, you requested a classification ruling.

You have submitted two samples of mini Christmas waterballs. The top of the mini waterballs is made of glass. Stock number 12503 is an Angel with Stars. The angel stands inside the waterball holding a bouquet of flowers. The words “Love, Peace and Joy” are inscribed on the base of the waterball. Stock number 12505 is an Ice Sculpture Snowman standing inside the waterball. The base is decorated with hearts and other objects.

The submitted catalog pages depict stock number 12502 known as Peace Tree Angel. The angel stands inside the waterball holding a Christmas tree with a star on the top. The base of the waterball is decorated with the word “Peace”, holly leaves and berries. Stock number 12506 is known as a Gardening Snowman. The snowman is pushing a wheelbarrow inside the waterball. The word “Joy” is inscribed on the base and the top of the waterball is adorned with holly leaves and berries.

Your letter of inquiry states that’s that you believe these items would be classified under 9505.10.2500 or 6810.99.0000. Stock numbers 12502, Peace Tree Angel, 12503, Angel with Stars and 12506, Gardening Snowman meets the requirements for classification in Chapter 95. Classification in Chapter 68 does not apply since these items have accepted symbols of Christmas motifs. Stock number 12505, Ice Sculpture Snowman is part of a pending Court decision.

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 stock number 12505, Ice Sculpture Snowman mini waterball.

The applicable subheading for all of the above mentioned Christmas mini waterballs (excluding Ice Sculpture Snowman) will be 9505.10.1000, Harmonized Tariff Schedule of the United States (HTS), which provides for articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Of glass. The rate of duty will be free.

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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