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NY J84357

May 5, 2003

CLA-2-95:RR:NC:SP:225 J84357


TARIFF NO. 9505.10.2500

Ms. Adrian Dawson
Kmart Corporation
Resource Center
3100 West Big Beaver Road
Troy, MI 48084-3163

RE: The tariff classification of Christmas decorations from China.

Dear Ms. Dawson:

In your letter dated April 24, 2003, you requested a classification ruling.

You have submitted five samples. Item number 579166-117 is an occupation snowman (Fireman). He is dressed in a fireman’s coat and hat. The hat is adorned with holly leaves and berries. Item number 579161-118 is a snowman holding a snowflake arch with a battery operated lighted function. The snowman is wearing a green hat that is adorned with holly leaves and berries and a red scarf. Item number 579158-114 is a gift bag style with a snowman head design. The snowman is wearing a blue hat that is adorned with holly leaves and berries with a blue and white scarf. Item number 579167-115 is skating snowmen with a battery operated lighted bulb garland. Each snowman is wearing a different color hat and scarf. Item number 579163-114 consists of three snowmen holding hands. They are wearing hats and scarves of different colors with holly leaf decorations. Each snowman is made of acrylic and will be sold separately.

The samples are returned as you requested.

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 number 579158-114, gift bag style snowman.

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.

The applicable subheading for items number 579166-117, occupation snowman (Fireman), 579161-118, snowman holding snowflake arch, 579167-115, skating snowmen and 579163-114, three snowmen holding hands 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.

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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