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NY L88573




November 22, 2005

CLA-2-85:RR:NC:1:108 L88573

CATEGORY: CLASSIFICATION

TARIFF NO.: 8513.10.4000

Mr. Steve Gula
Northern International, Inc.
8525 Commerce Court
Burnaby, B.C.
Canada, V5A-4N3

RE: The tariff classification of portable electric lamps and other electric composite lamps from China.

Dear Mr. Gula:

In your letter dated October 27, 2005, you requested a tariff classification ruling.

The submitted samples consist of the following electric lamps:
item number 187363, advertised as the “Flickering Patio Light,” is a portable, battery-operated lamp that measures approximately 8 ½ inches high and features a glass hurricane-like shade, which encloses an interior light bulb; it also has a cylindrical-like metal base, serving as a battery case, with a bottom on/off switch that activates a flickering light.
item 125260, advertised as “Solar Lighting,” is a portable, solar-powered round-shaped lantern, which measures approximately 6 inches in height and has a top loop-shaped carrying and hanging handle, as well as a hollowed metal and glass body with an opened bottom; it also features a dome-like metal top, which incorporates batteries and a solar panel, as well as a LED light bulb protruding from its interior bottom. There is also a metal shepherd’s hook with a spiked bottom, measuring about 26 inches long when assembled, that is designed to serve as a stand for this lightweight, portable lantern. The essential character of this merchandise is imparted by the portable lantern.
item number 125262, advertised as “Solar Lighting,” consists of a pair of solar-powered matching lanterns that are composed of metal and non-metal components and are designed to be affixed to a pair of metal posts (packaged with the lanterns).
item number 188503, advertised as the “Flickering Candle Lantern,” is a battery-operated lantern, which is composed of metal and non-metal components and features a small hoop-shaped top that is designed to be secured to a small metal stand with a ring-shaped base (packaged with the 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 pair of solar lamps with metal posts, item number 125262, and the Flickering Candle Lantern with metal stand, item number 188503, are constructed in such a manner that precludes consideration as portable electric lamps for classification purposes under heading 8513, HTS, and subsequently under subheading 8513.10.4000, HTS.

The applicable subheading for the portable, lightweight Flickering Patio Light, item number 187363, and the portable, solar-powered lantern with the metal stand, item number 125260, 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.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

In reference to the classification of the remaining composite lamps (item numbers 125262 and 188503), 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 for these lamps 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 item numbers 125262 and 188503. Accordingly, we are administratively closing our file for these specific lamps.

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.

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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