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NY J84162




June 23, 2003

CLA-2-95:RR:NC:SP:225 J84162

CATEGORY: CLASSIFICATION

TARIFF NO. 9505.10.2500

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 27, 2003, you requested a classification ruling.

The submitted photographs depict five samples. Style number 04F30001A is a fiber optic seated snowman holding a snowball with a blue colored snowflake design. The snowman measures 12 inches in height. It is composed of 22% fabric, 24% fiber optic, 30% plastic, 5.5% motor, 4% light bulb and 13.5% adapter.

Style number ES69-461AV is a foldable reindeer in a standing position with wire structure and rope lighting. The reindeer is composed of 40% steel, 30% PBC, 20% electrical wire and 10% glass bulbs. This reindeer measures 14-1/2 inches in height. It is used as a decoration in and around the home during the Christmas holiday season.

Style number 04-102A is a silver colored fiber optic angel. The angel is 12 inches in height and sits on top of a plastic cone. The material breakdown of this item is 40% fabric, 30% plastic, 5% porcelain, 5% polyvinyl chloride (PVC) cone, 5% metal and 15% acrylic. We are unable to render a classification of this item without a sample. Please provide a sample for our examination when you resubmit your request.

Style number 04-102D is a fiber optic angel dressed in red and white. The red and white fabric appears to be adorned with holly leaves and berries design. The angel is 12 inches in height and sits on top of a plastic cone. The material breakdown of this item is 40% fabric, 30% plastic, 5% porcelain, 5% polyvinyl chloride (PVC) cone, 5% metal and 15% acrylic.

Style number 20-18-2 is a 31 inch high artificial Christmas tree with a stake and a string of lights. The material breakdown consist of 30% iron, 25% polyvinyl chloride (PVC) 20% steel, 10% polyester, 10% copper and 5% glass.

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 number 04F30001A, fiber optic seated 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 style numbers ES69-461AV, foldable reindeer, 04-102D, fiber optic angel and 20-18-2, artificial Christmas tree will be 9505.10.2500, Harmonized Tariff Schedule of the United States (HTS), which provides for Festive...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.

Sincerely,

Robert B. Swierupski
Director,

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