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NY I82297




June 19, 2002

CLA-2-95:RR:NC:SP:222 I82297

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.2500; 8306.29.0000

Ms. Jodi Gracey
Kohl’s Department Stores
N56 W17000
Ridgewood Drive
Menomonee Falls, WI 53051

RE: The tariff classification of Christmas decorations from China.

Dear Ms. Gracey:

In your letter dated May 21, 2002, you requested a classification ruling.

You have submitted four samples of Christmas decorations. Each tealight holder will be imported without the tealight candles. They will be sold separately in Khol’s lighting department The top of each tealight holder has an opening at the top for ventilation. The back of each holder has a circular cutout opening for placing the candle inside. The purpose of the tealight is for illumination of the holder.

Assortment number 2XJF657, identifies two styles of 100% metal snowmen tealight holders that measure approximately 9” high by 4” wide. One snowman holds a broom and the other holds a sign that reads “Let It Snow”. Both snowmen are wearing hats and scarves made of metal.

Style number ZB-3338C identifies a snowman holding a top hat in one hand and a birdhouse in the other. The birdhouse is adorned with holly leaves and berries. The snowman’s upper body is made of metal and the lower body is made of glass and metal. The snowman measures approximately 11” high by 4” wide.

Style number ZB-3338B is a metal and glass snowman tealight holder. The snowman is wearing a hat and scarf and he holds a broom in one hand. The upper body is made entirely of metal and the lower body is made of glass and metal. The lower body is decorated with Christmas gifts. The snowman measures approximately 11” high by 4” wide.

Style number ZB-2358 is an angel tealight holder of base metal and glass. This item measures approximately 11” high by 4” wide. The upper body of the angel is made of base metal and the lower body is made of glass and base metal. In our opinion, the upper body imparts the essential character to this item. The samples are returned as you requested.

The applicable subheading for style numbers ZB-3338C and ZB-3338B 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.

The applicable subheading for style number ZB-2358, the metal and glass angel tealight holder, will be 8306.29.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for which provides for statuettes and other ornaments, of base metal, other. The rate of duty will be free.

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 2XJF657, metal snowmen tealight holders.

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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