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NY L86192




August 2, 2005

CLA-2-85:RR:NC:1:108 L86192

CATEGORY: CLASSIFICATION

TARIFF NO.: 8513.10.4000

Ms. Patricia A. Wolfenbarger
FedEx Trade Networks
Transport & Brokerage, Inc.
6730 Middlebelt Road
Romulus, MI 48174

RE: The tariff classification of electric lanterns with metal stands from China.

Dear Ms. Wolfenbarger:

In your letter dated July 6, 2005, on behalf of Northern International, Inc., you requested a tariff classification ruling.

The subject merchandise, based on the submitted samples, consist of the following electric lanterns with their stands:
a portable, lightweight, solar-powered electric lantern with a top loop-shaped carrying and hanging handle, referred to as the “Solar Flickering Candle Lantern” (item number 187370), which measures about 5 ½ inches in height by 5 inches in diameter. It features a cylindrical-like metal and glass housing that has a circular top cover, which incorporates two batteries; a solar panel, which converts sunlight into electricity and recharges the batteries; an LED light bulb; and an on/off switch. Further, it contains a small plastic candle-shaped article, which is designed to simulate a flickering candle when the above light bulb is activated. There is also a metal shepherd’s hook, measuring approximately 26 ½ inches long, that is designed to serve as a stand for this lantern.
a battery-operated electric lantern, referred to as the “Flickering Candle Lantern (item number 187366), which measures approximately 7 ¾ inches in height by 5 inches in diameter. It features a cylindrical-like metal and glass housing that has a dome-shaped top cover, which incorporates a battery compartment; a photocell; an LED light bulb; and an on/off switch. It has a small hoop-shaped finial securing the top portion; furthermore, it contains a small plastic candle-shaped article, which is designed to simulate a flickering candle when the above the light bulb is activated. There is also a metal shepherd’s hook, measuring approximately 29 ½ inches long, that is designed to serve as a stand for this lantern.

You suggest that this merchandise may be classified under subheading 8513.10.4000, HTS, which provides for other portable electric lamps designed to function by their own source of energy. However, the Flickering Candle Lantern (item number 187366), which is constructed with a small hoop-shaped finial, is not designed to be portable for classification purposes under heading 8513, HTS, thereby precluding consideration of classification under subheading 8513.10.4000, HTS.

The applicable subheading for the portable electric lantern, known as the Solar Flickering Candle Lantern (item number 187370), 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.

In regard to the classification of the Flickering Candle Lantern (item number 187366), the issue of the scope of composite electric lights under 9405 is currently pending before the United States Court of Appeals for the Federal Circuit in the matter of The Home Depot U.S.A. v. United States Court of International Trade (civil action 00-02-00061, etc.). 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 noting the prohibition set out in 19 CFR 177.7(b) and determining the instant ruling request is closely related to the issue presently pending in the Court of Appeals, we are unable to issue a ruling letter to you with respect to the Flickering Candle Lantern. Accordingly, we are administratively closing our file.

When all litigation has been concluded on the case referenced above, you may resubmit your request for a ruling. 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, Bureau of Customs and Border Protection, Attn: CIE/Ruling Request, One Penn Plaza, 10th Floor, New York, NY 10119.

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 Michael Contino at 646-733-3014.

Sincerely,

Robert B. Swierupski
Director,

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