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NY M81485




April 10, 2006

CLA-2-70:RR:NC1:126: M81485

TARIFF NO.: 7013.99.8000

Ms. Tammy Oliver
Kohl’s Department Stores
N56 W17000 Ridgewood Drive
Menomonee Falls, Wisconsin 53051

RE: The tariff classification of photo holders from China

Dear Ms. Oliver:

In your letter dated March 16, 2006, you requested a tariff classification ruling regarding two glass/metal photo holders from China (item numbers U6003-57 and 10673A-75).

Samples were submitted with your ruling request.

In accordance with your request, the samples of the photo holders will be returned to you.

The merchandise consists of picture holders made of glass and metal.

The body of each holder consists of two sheets of glass designed to hold a picture. Each article has a stainless steel base and a stainless steel rod in back of the item.

One photo holder features the words “Merry Christmas” in metal in front of the article (item number U6003-57).

The other includes the word “Friends” in metal in front of the article (item number 10673A-75).

You stated that the unit value of each picture holder is over three dollars but not over five dollars.

The essential character of the glass/metal picture holder is imparted by the glass body of the article. This glass component is the portion of the article which performs the product’s function of holding pictures.

The applicable subheading for the glass/metal picture holder with the word “Friends” will be 7013.99.8000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for glassware of a kind used for...toilet, office, indoor decoration and similar purposes...other glassware: other: other: other: valued over three dollars each: other: valued over three dollars but not over five dollars each. The rate of duty will be 11.3 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

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 Jacob Bunin at 646-733-3027.

We are unable to issue a ruling on the photo holder with the words “Merry Christmas at this time, because the classification of this merchandise involves a consideration of whether the product may be classifiable in Chapter 95 as "festive."

On June 29, 2005, a proposal to limit the court decisions in Park B. Smith, Ltd. V. United States, 25 Ct. Int’l Trade 506 (2001), affirmed in part, vacated in part, and remanded, 347 F. 3d 922 (Fed. Cir. 2003), rehearing denied (Fed. Cir. March 16, 2004), was published in the Customs Bulletin.

CBP will notify the public in the Customs Bulletin when the agency has completed its review of its position in light of comments received in response to this notice.

In addition, there are currently pending several cases before the Court of International Trade involving the question of classification of merchandise as "festive" in Chapter 95 of the Harmonized Tariff Schedule of the United States.

Section 177.7 of the Customs Regulations (19 C.F.R. §177.7) provides that rulings will not be issued in certain circumstances. Specifically, § 177.7(b) reads, in pertinent part:

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.

Therefore, CBP will not issue a classification ruling with regard to the “Merry Christmas” photo holder at this time.

The classification determination may be impacted by the agency’s position regarding the court decisions in Park B. Smith, supra. In addition, issuance of a classification ruling would be inconsistent with 19 C.F.R. §177.7(b), cited above.

The court cases currently pending in the Court of International Trade, which may preclude issuance of a ruling on the subject merchandise, include cases involving the classification of sweaters and blouses, textile and plastic bows, glassware, tableware and bakeware. See Michael Simons Designs, Inc. v. United States, Ct. No. 04-00537; Berwick Industries, Inc. v. United States, Ct. Nos. 98-12-03189, 96-01-00263, 99-01-000436, 99-03-00121, 99-03-00158, 99-06-00356, 98-09-02897, 97-05-00789, 97-06-00983, 97-08-01400, 96-12-0738, 96-05-01359, and 96-04-01197; Waterford Wedgwood USA, Inc. v. United States, Ct. Nos. 00-05-00215, 99-03-00133 and 99-11-00721; Cuthbertson Imports Inc. v. United States, Ct. No. 03-00846; and Wilton Industries, Inc. v. United States, Ct. Nos. 00-11-00528, 00-01-00218, 00-03-00014, 00-03-00015, 00-04-00193, 00-04-00194 and 00-04-00250.

If you wish, you may resubmit your request for a prospective ruling on the “Merry Christmas” photo holder CBP issues a final determination with regard to its proposal to limit Park B. Smith, supra.

However, in keeping with an importer’s responsibility to exercise reasonable care, you may wish to check the status of pending court cases involving the issue of classification of merchandise as "festive articles" of heading 9505, HTSUS, and assess the possible impact on the classification of your merchandise. If you choose to resubmit your request for a ruling, CBP will consider at that time whether pending cases before the Court of International Trade or the Court of Appeals for the Federal Circuit preclude issuance of a ruling. The file on the “Merry Christmas” photo holder is hereby administratively closed.

If you have any questions regarding the above, contact National Import Specialist Alice Wong at 646-733-3026.

Sincerely,

Robert B. Swierupski
Director,

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