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NY R00050




January 23, 2004
CLA-2-85:RR:NC:1:127 R00050

CATEGORY: CLASSIFICATION

TARIFF NO.: 8513.10.4000

Ms. Shelly L. Hess
N.I. Logistics American Corporation
12480 NE Marx Street
Portland, OR 97230

RE: The tariff classification and marking of portable wax lamps from China.

Dear Ms. Hess:

In your letter received in this office on December 29, 2003, on behalf of Pacific China Industries, Ltd., you requested a tariff classification and marking ruling.

The subject merchandise, based on the submitted information, is portable cylindrical-shaped scented-wax lamps that measure approximately in the range of 3 to 6 inches in height by 3 inches in diameter. Each lamp, which is referred to as the “flameless wax candle,” houses a battery-operated LED light. They are stated to be designed for indoor use, e.g., on the dinner table, and outdoor use, e.g., on the patio or porch.

It is stated that the subject wax lamp will be marked “Made in China” with the marking molded into the body of its plastic battery cover (or alternatively marked with a stick-on label at the lamp’s bottom, if the plastic mold is not finalized in time). This lamp will also be imported and sold in a retail-packed box with the following: a front panel with an opened window exposing the actual lamp for easy viewing and smelling; top and side panels that are printed with writing describing its efficient qualities, noting the side panels also have illustrative depictions of the lamp; a back panel printed with words describing its efficient qualities as well as its uses; and a bottom panel printed with URL addresses, copyright information, the item number, the bar code, and the marking “Made in China,” noting that the printing on the bottom panel is smaller than the printing on the other panels.

You believe that this lamp is properly classified under subheading 9405.50.4000, Harmonized Tariff Schedule of the United States (HTS), which provides for other non-electrical lamps and lighting fittings, other. However, since this lamp is battery-operated and therefore electrical, consideration of classification as a non-electrical lamp under 9405.50.4000, HTS, is precluded.

The applicable subheading for this portable electric lamp will be 8513.10.4000, Harmonized Tariff Schedule of the United States (HTS), which provides for other portable electric lamps designed to function by their own source of energy. The rate of duty will be 3.5 percent ad valorem.

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.

As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.

Although the wax lamp itself will be marked with the country of origin, the ultimate purchaser may not open the packaging to determine the country of origin of the wax lamp. Therefore, the box must be marked with the country of origin. In this regard, the country of origin is marked on the bottom of the box. However, Customs has determined that, in general, the bottom of the box is not a conspicuous location to place a country of origin marking. Therefore, the country of origin must be properly marked in a conspicuous manner (in comparable printing) elsewhere on the box in accordance with the above-stated marking regulations.

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 George Kalkines at 646-733-3028.

Sincerely,

Robert B. Swierupski
Director,

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