# NY J87103 

August 14, 2003

CLA-2-34:RR:NC:SP:237 J87103

**CATEGORY: Classification**

TARIFF NO.: 3406.00.0000

Mr. Benson Lau

Prejecting 2500 Ltd.

8/F, Unit 39-40 Pacific Trade Center

2 Kai Hing Road

Kowloon Bay, Kowloon, Hong Kong 180

RE: The tariff classification of pillar-shaped and taper-shaped wax
candles from China.

Dear Mr. Lau:

In your letter dated August 8, 2003 you requested a tariff
classification ruling on five candle articles. Your samples are being
returned.

Article No. KM03-174 Novelty Candle Garden consists of two
cellophane-wrapped hand-painted snowman-shaped wax candles (approx.
2.5"D x 4.8"H and 3"D x 5.5"H) said to contain 100% paraffin; two
cellophane-wrapped hand-painted pine tree-shaped wax candles (approx.
2"D x 4"H and 2.5"D x 8.25"H) said to contain 100% paraffin; three dried
pinecones (2"D x 2"H); and one hand-painted iron plate with raised rim
(9"D x 0.25"H).

Article No. KM03-179 Red Pillar consists of a scented cellophane-wrapped
red pillar-shaped wax candle (2.8"D x 6"H) said to contain 58% palm oil
and 42% paraffin.

Article No. KM03-180 Ivory Pillar consists of a scented
cellophane-wrapped white pillar-shaped wax candle (2.8"D x 4"H) said to
contain 58% palm oil and 42% paraffin.

Article No. KM03-182 Green Taper consists of a cellophane-wrapped green
taper-shaped wax candle (0.5-0.75"D x 11.5"H) said to contain 58% palm
oil and 42% paraffin.

Article No. KM03-183 Green Taper consists of a cellophane-wrapped green
taper-shaped wax candle (0.5-0.75"D x 7.5"H) said to contain 58% palm
oil and 42% paraffin.

The applicable subheading for Articles No. KM03-179 Red Pillar, KM03-180
Ivory Pillar, KM03-182 Green Taper and KM03-183 Green Taper 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.

Article No. KM03-174 Novelty Candle Garden with snowman candles 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 Article No.
KM03-174 Novelty Candle Garden with snowman candles.

When all litigation has been concluded on the case referenced above, you
may resubmit your request for a ruling on Article No. KM03-174 Novelty
Candle Garden with snowman 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 (646) 733-3026.

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.

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

Director, National Commodity

Specialist Division