CLA-2 OT:RR:CTF:TCM H081686 DSR
Marian E. Ladner
Ladner & Associates PC
The Kirby Mansion
2000 Smith Street
Houston, TX 77002
RE: Revocation of NY N077436, dated October 9, 2009; classification of LED task light kit
Dear Mrs. Ladner:
This is in response to your letter, dated October 22, 2009, requesting reconsideration of New York Ruling Letter (NY) N077436, dated October 9, 2009. NY N077436 pertains to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of an LED task light kit referred to as the “Nightstick Task Light” (Model NSR-2492) (hereinafter “Nightstick”) and imported by the requester Bayco Products (“Bayco”). CBP classified the article in subheading 8513.10.20, HTSUS, which provides for "Portable electric lamps designed to function by their own source of energy (for example, dry batteries, storage batteries, magnetos) …: Lamps: Flashlights.” You assert that the Nightstick is instead classifiable under subheading 8513.10.40, HTSUS, as “Portable electric lamps designed to function by their own source of energy (for example, dry batteries, storage batteries, magnetos) …: Lamps: Other.”
Pursuant to section 625 (c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), as amended by section 623 of Title VI, a notice was published in the Customs Bulletin, Vol. 46, No. 28, on July 5, 2012, proposing to revoke NY N077436. No comments were received in response to the notice.
FACTS:
The Nightstick is a cylindrical battery-powered hand-held work light that measures approximately 11 ½ inches high by 2 inches in diameter at its widest points. It is made of plastic, features sculpted finger grooves for a positive grip, and is powered by an internal Ni-MH (nickel-metal hydride) battery. At one end of the Nightstick are an LED (light emitting diode) bulb and a reflector under a clear lens. Along one side of the upper part of the Nightstick’s housing are 60 LED bulbs arranged in a 4 by 15 grid under a clear lens. On the other side of the housing is a push button switch that cycles the light between flashlight on/off, LED grid on/off, and a dual use function, where the flashlight and LED grid are powered on simultaneously. The Nightstick is imported together with two removable plastic cuffs designed to snap onto the body of the light. One cuff provides a magnet for mounting the light on any flat, ferrous surface; the other is a swiveling combination hook/stand. There is also a connection for a battery charger adapter. The Nightstick is packaged for retail sale in a plastic clamshell case with the plastic cuffs, an AC wall adapter, a DC 12-V car charger adapter, and an instruction booklet. Images of the device appear below.
ISSUE:
Whether the Nightstick Task Light kit is classified in subheading 8513.10.20, HTSUS, as a flashlight, or in subheading 8513.10.40, HTSUS, as an “other” portable electric lamp.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration in this case are as follows:
8513 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:
* * *
8513.10 Lamps:
8513.10.20 Flashlights.
8513.10.40 Other.
* * * *
We first note that the kit cannot be classified according to GRI 1 because it is not provided for eo nomine in any heading of the tariff. GRI 2 is also not applicable in this instance. As noted above, the Nightstick is imported in a kit as it is sold at retail. The kit contains the Nightstick, two removable plastic cuffs designed to snap onto the body of the light, an AC wall adapter, a DC 12-V car charger adapter, and an instruction booklet. A plastic clamshell case holds all of the above items. All of the items are classifiable in different headings, are “put up together” to enable a user to carry, charge and understand how to operate the Nightstick, and are offered for sale directly to users without repacking. GRI 3(b) states that “[g]oods put up in sets for retail sale shall be classified as if they consisted of the material or component which gives them their essential character.” See EN(X) to GRI 3(b) (goods put up for retail sale mean goods which consist of at least two different articles which are, prima facie, classifiable in different headings; consist of products or articles put up together to meet a particular need or carry out a specific activity; and are put up in a manner suitable for sale directly to users without repacking). The item that imparts the essential character of this set is the Nightstick, as it is the dominant component, both by use and cost in relation to the other constituent components of the set. It is also the reason why a consumer would purchase the set. As such, the set is classified as if consisting only of the Nightstick.
Note 3 to Section XVI, HTSUS, reads in pertinent part as follows:
3. Unless the context otherwise requires . . . other machines designed 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.
Note 5 to Section XVI, HTSUS, defines a “machine” as “any machine, machinery, plant, equipment, apparatus or appliance cited in the headings of chapter 84 or 85.” The ENs to Section XVI state, in pertinent part:
(VI) MULTI FUNCTION MACHINES AND COMPOSITE MACHINES
(Section Note 3)
In general, multi-function machines are classified according to the principal function of the machine.
Multi-function machines are, for example, machine-tools for working metal using interchangeable tools, which enable them to carry out different machining operations (e.g., milling, boring, lapping).
Where it is not possible to determine the principal function, and where, as provided in Note 3 to the Section, the context does not otherwise require, it is necessary to apply General Interpretative Rule 3 (c) …
There is no dispute that the Nightstick is classifiable at GRI 1, in heading 8513, HTSUS, as a portable electric lamp designed to function by its own source of energy. It is also clear that the good is described by subheading 8513.10, HTSUS, as a “lamp.” The issue arises at the 8-digit level. Therefore, we begin the analysis using GRI 6. The issue is whether, at GRI 6, the article is a flashlight or an “other” portable electric lamp.
Note 3 to Section XVI, HTSUS, provides that, unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines designed 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. In a number of rulings, CBP has applied the definition of the term “flashlight” set forth in Sanyo Electric Inc. v. United States, 496 F.Supp. 1311, 1315, 84 Cust. Ct. 167 (1980), which determined that a flashlight is a small, battery-operated, portable electric light. CBP has also added to that definition by ruling that a flashlight is normally held in the hand by the housing, and that a flashlight’s primary function is to project a beam of light. See, e.g., HQ 967480, dated June 2, 2005; HQ 964495, dated February 12, 2001; HQ 952559, dated March 3, 1993; HQ 951855, dated July 24, 1992; and HQ 084852, dated March 28, 1990. Since the device in question projects a beam of light, is battery-operated, and is capable of being held in the hand by its housing, it meets the definition of a flashlight.
In addition to being held by hand and operating as a conventional flashlight, the Nightstick is also capable of (1) being placed on any flat, ferrous surface and mounted with its included magnet; (2) being hung from any stable protrusion that can fit within its hook attachment; or (3) being stood on its side by using its stand attachment. When in any of the above positions, the Nightstick’s LED bank (on the Nightstick’s side) and its LED bulb (on one end of the Nightstick) can operate alone or simultaneously. The LED bank casts a wide area light (referred to as a “floodlight” in Protestant’s submission), while the LED bulb casts a focused beam. CBP has previously ruled that when a portable, battery-operated lamp is primarily utilized for hands-free work, rather than carried in the hand, classification under subheading 8513.10.20, HTSUS, is precluded. See NY F81663, dated January 26, 2000.
Here, the Nightstick can function both as a flashlight and as an area light. Therefore, it is a multi-function machine, and the remaining issue is whether the device’s principal function is that of a flashlight or an “other” type of portable, battery-operated lamp, pursuant to Note 3 to Section XVI.
CBP has found the analysis developed and utilized by the courts in relation to “principal use” (the “Carborundum factors”) to be a useful aid in determining the principal function of an article. Generally, the courts have provided several factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: (1) general physical characteristics; (2) expectation of the ultimate purchaser; (3) channels of trade, environment of sale (accompanying accessories, manner of advertisement and display); (4) use in the same manner as merchandise that defines the class; (5) economic practicality of so using the import; and (6) recognition in the trade of this use. See United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377 (1976), cert. denied, 429 U.S. 979 (1976); Lennox Collections v. United States, 20 Ct. Int’l Trade 194, 196 (1996); Kraft, Inc. v. United States, 16 Ct. Int’l Trade 483, 489 (1992); and G. Heileman Brewing Co. v. United States, 14 Ct. Int’l Trade 614, 620 (1990). See also Headquarters Ruling Letter (“HQ”) W968223, dated January 12, 2007, and HQ 966270, dated June 3, 2003.
The Nightstick is compact and cylindrical, with sculpted finger grooves for a positive grip. It is battery-operated, but may also be powered via the AC adapter attachment. Whether held in the hand, placed upon a stable surface, or hung from something, it is able to cast light from one of its ends via a LED bulb (and surrounding reflector under a clear lens), and is also able to cast light (a flood light) via a bank of LEDs on its housing.
You assert that the lumens produced by the floodlight function (120 lm) compared to that produced by the flashlight function (65 lm) compels a finding that the principal function of the product will be as a floodlight. You also state that the LED bank has more utility than the flashlight because it provides a “flood of light,” which allows its user to work hands-free and it is not marketed or displayed as a typical “consumer flashlight.”
We find the measurement of lumens to be an inconclusive factor when comparing the utility of the two functions. A lumen is a measure of the power of light perceived by the human eye and dictates how much light is cast upon a surface. Floodlights typically need to produce a much wider beam of light than a flashlight; therefore, it follows that the lumens produced by a floodlight will be greater than that of a flashlight in order for the floodlight to cover that larger area. With regard to the marketing and display of the product, the product is advertised as a “Flashlight ( Floodlight ( Dual-light” for “PORTABLE LIGHTING ANYTIME ( ANYWHERE.” Its marketing literature does not conclusively tout one function over the other.
Furthermore, a consumer can choose to use the flashlight function alone (as evidenced by your submission showing the flashlight function employed so), or the floodlight alone, or both functions simultaneously. This is true whether the device is held in the hand, placed upon a floor or other stable, horizontal surface using the stand attachment, or hung using the hook attachment. The attachments allow for hands-free use of the light, but are not required for the light to function, are designed to be easily removable and, when attached, do not interfere with the user’s grip on the housing or the flashlight function.
You have not addressed the economic practicality of using the task light as a flashlight or a flood light. However, we note the subject task light can be purchased through the major online retailer Amazon.com for approximately $41. However, prices of comparable flashlights and floodlights on that site vary wildly above and below that price, apparently based upon power, brand, casings, LED and reflector technology, etc. We note the same with regard to “floodlights.” Therefore, we are unable to make a useful comparison of the different flashlights and floodlights and reach a conclusion with regard to the economic practicality of using the task light as a flashlight or floodlight.
Considering the above, we conclude that while the Nightstick exhibits the general physical characteristics of a flashlight, it is also marketed, sold and can be used in a manner that is inconsistent with flashlights. While the device in question, in both its flashlight and flood light modes, projects a beam of light (albeit a wider beam when
using the “floodlight” function), is battery-operated and is capable of being held in the hand by its housing, it also functions as something beyond that of a flashlight due to the capabilities imparted by the magnetic mount, combination hook/stand and LED bank. Therefore, we cannot determine its principal function.
In accordance with GRI 3(c), when goods cannot be classified by reference to GRI 3(a) or 3(b), they are to be classified in the heading that occurs last in numerical order among those that equally merit consideration in determining their classification. Therefore, classification of the Nightstick will be as subheading 8513.10.40, HTSUS, which provides for other portable, battery-operated electric lamps.
HOLDING: By application of GRIs 1 (Note 3/XVI), 3(b), 3(c) and 6, the subject Nightstick Task Light” (with accessories) is classified in 8513 HTSUS and specifically in subheading 8513.10.40, HTSUS as "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.” The column one general rate of duty is 3.5% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided at www.usitc.gov/tata/hts. EFFECT ON OTHER RULINGS:
NY N077436, dated July 2, 2008, is hereby revoked.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division