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NY J85731




June 18, 2003

CLA-2-34:RR:NC:SP:237 J85731

CATEGORY: CLASSIFICATION

TARIFF NO.: 3406.00.0000: 9505.10.2500

Mr. Justin A. Hassell
Allied Marketing Group, Inc.
691 Walt Whitman Road
Melville, New York 11747

RE: The tariff classification of a translucent wax candle with LED from China.

Dear Mr. Hassell:

In your letter dated June 4, 2003 you requested a tariff classification ruling.

“The Dreaming Candle” is described as a translucent wax candle containing a light emitting diode (LED) that illuminates the inside of the candle with continually changing shades of red, blue and green light when activated by the candle flame. The candle consists of paraffin wax molded in the shape of a 3-dimensional angel, snowman, Santa Claus, pine tree, rose bud, tulip bud, pinecone, garlic bud or egg measuring 4 to 5 in. high. The LED is powered by a non-replaceable lithium battery. Each candle is retail packed in a printed carton showing a series of lighted candles illuminated with various colors. Your samples are being returned.

The applicable subheading for the angel, tree, rose, tulip, pinecone, garlic and egg candles with LED will be 3406.00.0000, Harmonized Tariff Schedule of the United States, which provides for candles, tapers and the like. The rate of duty is free.

The applicable subheading for the Santa Claus candle with LED will be 9505.10.2500, HTSUS, which provides for articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other, other. The rate of duty is free.

The snowman candle with LED 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 snowman candle with LED.

When all litigation has been concluded on the case referenced above, you may resubmit your request for a ruling on the snowman candle with LED. 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 and Border Protection, One Penn Plaza, 10th Floor, New York, New York 10119, attn: CIE Binding Rulings Section.

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 St. and Constitution Ave. NW, Washington, DC 20230, phone (202) 482-0961.

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 should be provided with the entry documents filed at the time merchandise is imported. If you have any questions on the ruling, contact National Import Specialist Frank Cantone at 646-733-3038.

Sincerely,

Robert B. Swierupski
Director,
National Commodity

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