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NY K85659


May 5, 2004
CLA-2: RR: NC: 1:108 K85659

CATEGORY: CLASSIFICATION
TARIFF NO.: 9405.40.8000

Ms. Yolanda S. Massey
Michaels
8000 Bent Branch Drive
Irving, Texas 75063

Dear Ms. Massey:

This is in response to your letter of April 2, 2004, requesting a classification ruling on an electric night light depicting Rudolf/Hermey, Style #030599, and an electric night light depicting a sleigh ride, style number 76381, from China.

Per the Rudolf/Hermey night light, style number 030599, 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 Style 030599. Accordingly, we are administratively closing our file.

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, Bureau of Customs and Border Protection, Attn: CIE/Ruling Request, One Penn Plaza, 10th Floor, New York, NY 10119.

The second item concerns the classification of an electric nightlight, style number 76381. This particular nightlight is electric and is principally constructed of non-metal components. It is a light fixture with a socket containing a light bulb enclosed within a decorative display. It depicts a winter scene of a sleigh ride. It is to be plugged into an external source of power and it has an on/off switch.

The applicable subheading for the electric nightlight, style number 76381, will be 9405.40.8000, Harmonized Tariff Schedule of the United States (HTS), which provides for Other electric lamps and lighting fittings: Other. The rate of duty will be 3.9 percent ad valorem.

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 Michael Contino at 646-733-3014.

Sincerely,

Robert B. Swierupski
Director,

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