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NY H89148




March 21, 2002

CLA-2-34:RR:NC:SP:237 H89148

CATEGORY: CLASSIFICATION

TARIFF NO.: 3406.00.0000; 9505.10.2500

Ms. Ellyn Collins
Paper Magic Group
401 Adams Avenue
Scranton, PA 18510

RE: The tariff classification of three roly-poly figure-shaped wax candles from China.

Dear Ms. Collins:

In your letter dated March 7, 2002 you requested a tariff classification ruling.

Item No. 6599180-012 Roly-Poly Candles (3 assorted styles) consists of 3 individually shrink-wrapped wax candles, hand-painted and molded in the shape of a roly-poly penguin, a roly-poly Santa Claus and a roly-poly snowman (each approximately 5 inches high x 3-1/2 inches in diameter). Your samples are being returned.

The applicable subheading for the roly-poly penguin wax candle will be 3406.00.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for candles, tapers and the like. The rate of duty is free.

The applicable subheading for the roly-poly Santa Claus wax candle will be 9505.10.2500, HTSUS, which provides for festive...articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: other: other. The rate of duty is free.

The roly-poly snowman wax candle is seasonal merchandise and not necessarily associated with a particular holiday. However, the issue of the scope of the term “festive articles” under heading 9505, HTSUS, 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 the roly-poly snowman wax candle.

When all litigation has been concluded on the case referenced above, you may resubmit your request for a ruling on the roly-poly snowman wax candle. 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, New York 10119.

Candles from China may be subject to anti-dumping duties administered by the U.S. Department of Commerce, Import Administration. You may contact them at 14th Street and Constitution Avenue, N.W., Washington, DC 20230, telephone number (202) 482-4106.

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. For any questions regarding the ruling, contact National Import Specialist Frank Cantone at 646-733-3038.

Sincerely,

Robert B. Swierupski

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