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NY J87390

July 24, 2003

CLA-2-34:RR:NC:SP:237 J87390


TARIFF NO.: 9505.10.2500

Ms. Lorianne Aldinger
Rite Aide Corporation
P.O. Box 3165
Harrisburg, PA 17105

RE: The tariff classification of two wax candles poured in ceramic jars from China.

Dear Ms. Aldinger:

In your letter of July 10, 2003 you requested a tariff classification ruling.

Item #933776 Wax Filled Ceramic Candles consist of two wax candles poured in ceramic jars with painted raised impressions of either Santa or Snowmen. The candles are said to contain 58 percent palm oil and 42 percent paraffin wax and measure 4-7/8”D x 4”H. You state that the intended use of the Santa Candle is for decoration/ illumination.

The applicable subheading for the Santa Candle 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.

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 (202) 482-4106.

The Snowmen 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 Snowmen candle.

When all litigation has been concluded on the case referenced above, you may resubmit your request for a ruling on the Snowmen 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 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.

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.


Robert B. Swierupski

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