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NY J85810




July 1, 2003

CLA-2-34:RR:NC:SP:237 J85810

CATEGORY: CLASSIFICATION

TARIFF NO.: 3406.00.0000

Ms. Cheryl Santos
CVS Pharmacy
One CVS Drive
Woonsocket, Rhode Island 02895

RE: Tariff classification of cube shaped wax candles with metal trays from China.

Dear Ms. Santos:

In your letter dated June 23, 2003 you requested a tariff classification ruling.

Item# 245519 Xmas Square Candles consist of 3in. cube-shaped wax candles ($0.945) tied to 3in. square metal trays ($0.27) with ribbon and cellophane wrap ($0.135). The candles are decorated with snowflake or reindeer designs impressed on two sides. The wax is said to contain 70% palm oil and 30% paraffin. The candles impart the essential character of the set. Your samples are being returned.

Although they are described in your letter as Xmas Square Candles, the instant snowflake and reindeer candles are not considered festive articles for Customs purposes. A snowflake or reindeer alone is not a symbol of Christmas.

The applicable subheading for the reindeer candles with metal trays 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 snowflake candles are 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 snowflake candles.

When all litigation has been concluded on the case referenced above, you may resubmit your request for a ruling on the snowflake candles. 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. If you have any questions regarding this issue, contact National Import Specialist Alice Wong at 212-637-7028.

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,

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