CLA-2 CO:R:C:G: 084852 DPS
William F. Young, Esquire
Hunton & Williams
2000 Pennsylvania Avenue, N.W.
P.O. Box 19230
Washington, D.C. 20036
RE: Reconsideration N.Y. Ruling Letter 840381; rechargeable
emergency lights; flashlights
Dear Mr. Young:
This is in response to your letter of June 13, 1989, on
behalf of your client, International Consumer Brands, Inc.
(ICB), requesting reconsideration and modification of New
York Ruling Letter (NYRL) 840381, regarding the
classification of rechargeable emergency power failure
lights. Samples of the merchandise were submitted with your
reconsideration request.
FACTS:
NYRL 840381, issued on May 22, 1989, classified two ICB
portable lamp/flashlight products. One of the products was
classified as a flashlight under subheading 8513.10.2000,
HTSUSA, and the other was classified as a portable electric
lamp, other than a flashlight, under subheading 8513.10.4000,
HTSUSA. ICB only seeks reconsideration of New York's ruling
with regard to the first product's classification as a
flashlight. That product, called a "portable rechargeable
emergency light," is an electrical lighting device which is a
composite article that functions as a flashlight and as a
power failure light. The emergency light is made of
plastics, and depending upon the model, measures 8 to 10
inches in length. It has a rectangular shaped handle which
is designed to be carried in the palm of the hand when used
as a flashlight. In each model, the head contains a
reflector, a transparent plastic lens and a krypton filament
bulb. A three position switch and built-in electrical plug
are located on one side of the light's housing. A small LED
pilot light is located on the other side of the housing and
indicates that the unit is charging when lit. The unit
contains rechargeable nickel-cadmium batteries and circuitry
which senses 110 volt alternating current when plugged into
an electrical socket. In the event of a power failure, a
relay activated by the built-in circuitry switches on the
light and causes it to blink on and off for approximately
eight hours. The unit may be removed from the wall socket
and used as a flashlight in either a blinking or steady beam
mode, according to the position of the switch, by using power
provided by the recharged batteries which provide up to one
hour of illumination per full charge.
NYRL 840381 classified this product as a flashlight
under subheading 8513.10.2000, HTSUSA, pursuant to GRI 3(b),
on the basis that the essential character of the
rechargeable emergency light is that of a flashlight.
In its request for reconsideration, ICB requests that the
subject light be classified in the same manner as the
rechargeable emergency lantern was in NYRL 840381, as a
portable electric lamp designed to function by its own source
of energy, other than a flashlight, under subheading
8513.10.4000, HTSUSA. The only difference between the two
products is the configuration of the handle. The lantern's
housing has a molded plastic carrying handle which makes it a
"lantern," while the subject light's handle is the
rectangular shaped housing designed to be held in the hand.
Alternatively ICB suggests that this product be classified
under subheading 8548.00.0000, HTSUSA, the provision for
electrical parts of machinery or apparatus, not specified or
included, on the grounds that the emergency power failure
warning components, which are classifiable under subheading
8548.00.0000, HTSUSA, impart the device's essential
character.
ISSUE:
Whether the subject rechargeable emergency light is
properly classifiable as a flashlight under subheading
8513.10.2000, HTSUSA, as a portable electric lamp designed to
function by its own source of energy, other than a
flashlight, under subheading 8513.10.4000, HTSUSA, or under
subheading 8548.00.0000, HTSUSA, the provision for electrical
parts of machinery or apparatus, not specified or included.
LAW & ANALYSIS:
The General Rules for the Interpretation of the
Harmonized System (GRI's) govern classification under the
Harmonized Tariff Schedule. According to GRI 1, the primary
consideration in determining whether merchandise should be
classified in a heading should be given to the language of
the heading and any relevant chapter or section notes, and,
provided such headings or notes do not otherwise require,
according to the remaining GRI's, taken in order. GRI 6
requires that the GRI's be applied at the subheading level
on the understanding that only subheadings at the same level
are comparable. The GRI's apply in the same manner when
comparing subheadings within a heading.
Arguments that Heading 8530, which covers electrical
signaling, safety or traffic control equipment, Heading
8531, which covers electric sound or visual signaling
apparatus, and Heading 9405, which covers lamps and lighting
fittings not elsewhere specified or included, have been
considered and dismissed because application of GRI 1
precludes further consideration of the subject emergency
light in those headings. With regard to the subject
merchandise, the inquiry focuses on three provisions, two of
which are compared at the 8-digit subheading level. The
subheadings at issue in this case are:
(a) 8513.10.2000, HTSUSA, Portable electric
lamps designed to function by their own source
of energy (for example, dry batteries, storage
batteries, magnetos), other than lighting
equipment of heading 8512; parts thereof:
Lamps: Flashlights;
(b) 8513.10.4000, HTSUSA, Portable electric
lamps designed to function by their own source
of energy (for example, dry batteries, storage
batteries, magnetos), other than lighting
equipment of heading 8512; parts thereof:
Lamps: Other; and
(c) 8548.00.0000, HTSUSA, Electrical parts of
machinery or apparatus, not specified or
included elsewhere in this chapter.
NYRL 840381 recognized that the rechargeable emergency
light is a composite good and determined, pursuant to GRI
3(b), that the essential character of the device is imparted
by its flashlight components and features. In so ruling, ICB
argues that the decision implied that the emergency power
failure function was merely incidental to the device's
"essential character" of a flashlight. In support of its
position that such a feature is not merely incidental to the
product's identity and function, ICB cites the United States
Customs Court case of Sanyo Electric Inc. v. United States,
496 F.Supp. 1311 (1980), aff'd, 642 F.2d 435 (1981).
A review of the Sanyo case is instructive in resolving
the issues of this case, to the extent that the court
provides a definition of "flashlight," and recognizes that a
"power failure light is a multi-function article whose power
failure warning feature cannot be considered subsidiary,
subordinate or incidental to any function as a flashlight."
Id. at 1316 [emphasis added]. The conference report to the
Omnibus Trade Bill, which implemented the Harmonized Tariff
Schedule, states that on a case-by-case basis, prior judicial
decisions interpreting the nomenclature under the TSUS
"should be considered instructive in interpreting the HTS,
particularly where the nomenclature previously interpreted in
those decisions remains unchanged and no dissimilar
interpretation is required by the text of the HTS[USA]." H.
Rep. No. 100-576, 100th Cong., 2d Sess. 548 (1988) at 550.
Subheading 8513.10.2000, HTSUSA, covers flashlights,
which are defined by the Court in Sanyo, as "small, battery-
operated, portable electric lights." Sanyo, supra at 1315.
"Flashlights" have been defined in previous Customs Rulings
as small battery-operated portable electric lights normally
held in the hand by the housing itself. Subheading
8513.10.4000, HTSUSA, covers all other portable electric
lamps designed to function by their own source of energy.
Here, the emergency light functions both as a flashlight and
an emergency power failure warning light. However, it is our
position that the "Other," of subheading 8513.10.4000,
HTSUSA, does not cover the power failure warning features,
but merely refers to portable lamps of a size and shape other
than a flashlight. We therefore rule out subheading
8513.10.4000, HTSUSA, as a provision in which the subject
light is classifiable.
In a meeting with ICB representatives, their counsel,
and Customs officials, and subsequent submissions by ICB's
counsel, information was provided concerning the power
failure feature of the product, its circuitry and value,
and the marketing of the product as an emergency light
rather than a mere flashlight. In view of the decision in
Sanyo and the importer's submissions, we recognize that the
power failure function is more than incidental to the item's
use as a flashlight. However, it does not necessarily follow
that such recognition is determinative of essential
character. Heading 8548, HTSUSA, the provision for
electrical parts of machinery or apparatus not elsewhere
specified or included, covers the power failure warning
circuitry and components, but not the flashlight features.
Because the Headings at issue refer to part only of the
subject merchandise, and according to GRI 3(a) are to be
regarded as equally specific, resort to GRI 3(b) is
necessary.
According to GRI 3(b), mixtures and composite goods
consisting of different materials, or made up of different
components, shall be classified as if they consisted of the
material or component which gives them their essential
character. The factor that determines the essential
character of an article varies amongst different types of
articles. It may be the nature of the material or component,
its weight, value, bulk or quantity, or its role in relation
to the use of the goods.
Here, the portable electric lamp/flashlight features
provided for in Heading 8513, HTSUSA, clearly dominate the
weight and bulk of the device. The flashlight
components/features also play the more significant role in
relation to the power warning features. The flashlight
projects a beam of light, either while plugged into the wall,
or while the device is removed from the socket and carried in
the hand like a simple flashlight. The flashlight components
of the device provide illumination to the user when
necessary. We note that the power failure warning circuitry
and components provided for in Heading 8548, HTSUSA, add
substantially to the cost of the product, and are features
which distinguish it from a common flashlight. Nevertheless,
based on all the facts, we must find that the essential
character of this item is imparted to it by the flashlight
features.
Therefore, pursuant to GRI 3(b), and our finding that
the essential character of this product is that of a
flashlight, the subject rechargeable emergency flashlight is
properly classifiable under subheading 8513.10.2000, HTSUSA.
HOLDING:
NYRL 840381, which classified the subject rechargeable
emergency light as a flashlight under subheading
8513.10.2000, HTSUSA, is hereby affirmed. For the reasons
set forth above, the subject rechargeable emergency light is
properly classifiable under subheading 8513.10.2000, HTSUSA,
as a flashlight. Items classified under this subheading are
subject to a duty rate of 25 percent ad valorem.
A copy of this ruling letter should be attached to the
entry documents filed at the time this type of merchandise is
imported.
Sincerely,
John Durant, Director
Commercial Rulings Division