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NY I88264




November 22, 2002

CLA-2-95:RR:NC:SP:225 I88264

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.1500

Ms. Trudi Van Heuveln
JMC Impact
223 SE 1st Avenue
Clara City, MN 56222

RE: The tariff classification of a Snowflake 14” Pathmarker, a Snowman 30” Staked Sign, and a Gift 13” Pathmarker from China.

Dear Ms. Van Heuveln:

In your letter dated November 1, 2002, you requested a tariff classification ruling.

You submitted the following samples:

Item #90600, Snowflake 14” Pathmarker, is a wooden 14” lawn decoration in the shape of a snowflake decorated with tin holly leaves and holly berries. The snowflake is attached to a wooden stake for impaling in the ground, or can be hung from a metal hook on top of the snowflake.

Item #90604, Snowman 30” Staked Sign, is a wooden 30” lawn decoration in the shape of a snowman decorated with tin snowflakes and tin holly leaves and holly berries. Attached beneath the snowman, is a rectangular block of wood with the word “Welcome.” The snowman is attached to a wooden stake for impaling in the ground, or can be hung from a metal hook on top of the snowman.

Item #C03.13ST.701, Gift 13” Pathmarker, is a wooden lawn decoration in the shape of a red gift with a red and white bow. Both the gift and bow are decorated with green and gold glitter. The gift is attached to a wooden stake for impaling in the ground, or can be hung from a metal hook on top of the bow.

The applicable subheading for Item #90600, Snowflake 14” Pathmarker, Item #90604, Snowman 30” Staked Sign, and Item #C03.13ST.701, Gift 13” Pathmarker, will be 9505.10.1500, 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: Articles for Christmas festivities and parts and accessories thereof: Other: Of wood.” The rate of duty will be free.

We are unable to rule at this time on Item #90598, Snowmen 18” Hanging Sign, and Item #C03.13ST.702, Snowman 13” Pathmarker.

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 Item #90598, Snowmen 18” Hanging Sign, and Item #C03.13ST.702, Snowman 13” Pathmarker.

When all litigation has been concluded on the case referenced above, you may resubmit your request for a ruling on these items. 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,

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