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NY H89369




March 15, 2002

CLA-2-95:RR:NC:SP:225 H89369

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000

Ms. Barbara Y. Wierbicki
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, NY 10036-8901

RE: The tariff classification of a Country Harvest Candle (Happy Thanksgiving) from China.

Dear Ms. Wierbicki:

In your letter dated March 12, 2002, on behalf of your client, Avon Products, Inc., you requested a tariff classification ruling.

The submitted assortment, PP #238340, Country Harvest Candles (Happy Thanksgiving – F620771) consists of a white colored scented candle poured into a ceramic container that measures approximately 3-1/2” in height and 2-7/8” in diameter and has a removable polyresin lid with a foam stopper. The container is decorated with brown leaves and the words “Happy Thanksgiving.” The lid is decorated with a “Horn of Plenty” filled with traditional fall vegetables and fruit (pumpkins, squash, gourds, and grapes) and brown, yellow, and green foliage. This office finds that the words “Happy Thanksgiving” on the container are intrinsically related to the holiday of Thanksgiving and qualifies the item for classification under 9505 as a festive article. Your sample is being returned as requested.

The applicable subheading for PP #238340, Country Harvest Candles (Happy Thanksgiving – F620771) will be 9505.90.6000, Harmonized Tariff Schedule of the United States (HTS), which provides for festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: other: other. The rate of duty will be free.

We are unable to issue a ruling on the second submitted sample in assortment PP #238340, Country Harvest Candles (Happy Harvest – F620811).

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 PP #238340, Country Harvest Candles (Happy Harvest – F620811). 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, U.S. Customs Service, Attn: CIE/Ruling Request, One Penn Plaza, 10th Floor, New York, NY 10119.

You have asked whether this product is subject to antidumping duties or countervailing duties. A list of AD/CVD proceedings at the Department of Commerce (DOC) and their product coverage can be obtained from the DOC website at: http://ia.ita.doc.gov, or you may write to them at the U.S. Department of Commerce, International Trade Administration, Office of Antidumping Compliance, 14th Street and Constitution Avenue, N.W. Washington, DC 20230. Written decisions regarding the scope of AD/CVD orders are issued by the Import Administration in the Department of Commerce and are separate from tariff classification and origin rulings issued by Customs.

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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