HQ 951855
July 24 1992
CLA-2 CO:R:C:M 951855 DFC
David A. Eisen, Esq.
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway
New York, New York 10036
RE: Light, portable; "Beam-N-Blink Light"; HRL 082933
Dear Mr. Eisen:
In a letter dated April 13, 1992, on behalf of your client,
Avon Products, Inc., you inquired as to the tariff classification
under the Harmonized Tariff Schedule of the United States
(HTSUS), of a portable electrical lighting device. You state
that the article, referred to as a "Beam-N-Blink light," will be
produced in China and/or Taiwan. A sample was submitted for
examination.
FACTS:
The sample is a cube-shaped, portable, plastic, battery
operated lighting device. It measures approximately 2-3/4 inches
by 2-3/4 inches by 2 inches. It consists of a filament bulb, a
reflector, a clear plastic lens, and has a three position switch
on one side and a textile carrying cord. In addition, there is a
removable red tinted transparent plastic covering that fits over
the fixed lens side of the unit.
Although no descriptive literature, advertising or marketing
material or container for the article were furnished, you state
that this device is designed to be used around automobiles as an
emergency lighting device. Examination of the sample reveals
that it has two functions. It acts as both a flashlight and an
emergency blinker. Both functions, controlled by the switch,
share a common power source and filament bulb.
-2-
ISSUE:
Is the portable electrical lighting device classifiable
under subheading 8513.10.40, HTSUS, as a portable electric lamp
designed to function by its own source of energy, other than a
flashlight or is it classifiable under subheading 8513.10.20,
HTSUS, as a flashlight?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes, and, provided
such heading or notes do not otherwise require, according to [the
remaining GRI's taken in order]." In other words, classification
is governed first by the terms of the headings of the tariff and
any relative section or chapter notes. GRI 6, HTSUS, 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.
You maintain that the device is an emergency lighting device
which, pursuant to GRI 1, HTSUS, is eo nomine provided for in
subheading 8513.10.40, HTSUS. The rationale for your position is
that a physical examination of the product and the manner in
which it will be marketed and sold shows that the product is
intended to be used and purchased as an emergency lighting device
for automobiles, rather than as a flashlight. Also, you claim
that the red tinted covering detracts from any practical use as a
flashlight as the light emitted is not as sharp and is less
intensive than light from a flashlight.
You argue that even if Customs considers the product to be a
composite good, it still must be classified under subheading
8513.10.40, HTSUS, following GRI 3(c), HTSUS, as
" . . . the heading which occurs last in numerical order among
those which equally merit consideration." Specifically, each
component equally contributes to the versatility and multiple use
of the merchandise and each is necessary to its intended use and
function and therefore neither the blinking light nor the
spotlight imparts the essential character.
As noted, we were not provided with descriptive literature,
advertising or marketing material or the container in which the
article reaches the ultimate consumer. Therefore, we are unable
to assess how it will be marketed or sold. However, based upon
our examination of the sample, we disagree with your suggested
classification.
-3-
Legal Note (LN) 3 to Section XVI, HTSUS, reads in pertinent
part as follows:
3. Unless the context otherwise requires . . . other
machines adapted for the purpose of performing two or
more complementary or alternative functions are to be
classified as if consisting only of that component or
as being that machine which performs the principal
function.
LN 5 to Section XVI, HTSUS, reads as follows:
5. For the purposes of these notes, the expression
"machine" means any machine, machinery, plant,
equipment, apparatus or appliance cited in the headings
of chapter 84 or 85.
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) to the HTSUS, although not dispositive,
should be looked to for the proper interpretation of the HTSUS.
See 54 FR 35128 (August 23, 1989). General Section Note VI
MULTI-FUNCTION MACHINES AND COMPOSITE MACHINES regarding HTSUS
Section Note 3, at page 1132, provides in pertinent part that
"[i]n general, multi-function machines are classified according
to the principal function of the machine."
Based upon our examination of the sample, and the role the
flashlight plays in relation to the overall use of the device, it
is our opinion that the principal function of the "Beam-N-Blink
Light" is that of a flashlight. We believe the emergency blinker
is a secondary feature which probably adds to the salability of
the article. However, as a practical matter, the lighting device
would be purchased and used not as an emergency blinker but
because it is a flashlight.
Subheading 8513.10.20, HTSUS, covers flashlights. Customs
has defined flashlights as small battery-operated portable
electric lights normally held in the hand by the housing itself,
the primary function of which is to project a beam of light.
Subheading 8513.10.40, HTSUS, covers all other portable electric
lamps designed to function by their own source of energy. Here,
the lighting device functions as a flashlight with an emergency
blinker light. It is our view that the "other" of subheading
8513.10.40, HTSUS, does not cover the blinker light feature, but
merely refers to portable lamps other than flashlights. Since
the device in question projects a beam of light, is battery-
operated and will be held in the hand by its housing, it meets
the definition of a flashlight.
-4-
The removable red tinted transparent covering is not a part
of the lighting device but is an accessory piece for use in
conjunction with the blinker feature. The article itself has a
clear plastic lens that emits light as sharp and intensified as
any common flashlight. See Headquarters Ruling Letter 082933
dated August 4, 1989, wherein Customs classified another
flashlight/signaling device in subheading 8513.10.20, HTSUS.
HOLDING:
The "Beam-N-Blink" portable electric lighting device is
properly classified as a flashlight under subheading 8513.10.20,
HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc AD NY Seaport
1cc George Kalkines NY Seaport
1cc John Durant
1cc Legal Reference