CLA-2 OT:RR:CTF:TCM H255441 DSR
TARIFF NOS.: 8501.31.80
Port Director, Port of Charlotte
1901 Crossbeam Drive
Charlotte, NC 28217
Attn: Jeffrey Sorrells, Import Specialist
RE: Application for Further Review of Protest No. 1512-14-100030; classification of 1.5 watt solar battery charger, 13 watt briefcase solar charger, and portable household battery solar charger
Dear Port Director:
This is in response to Protest 1512-14-100030, dated April 14, 2014, filed by Central Purchasing, Inc. (Protestant), in response to your classification of a solar battery charger, briefcase solar charger, and portable household battery solar charger under the Harmonized Tariff Schedule of the United States (HTSUS). The devices were entered in 2012 and 2013, and liquidated between October 17, 2013 and March 2014. Protestant timely filed the protest on April 14, 2014.
FACTS:
The 1.5 watt solar battery charger (SKU 68692) is a retail package that is used to generate and supply 1.5 watts of electricity to an automobile’s battery. The package contains a solar cell that converts sunlight into DC power. The item is designed to be mounted onto an automobile’s windshield or dashboard. It can be plugged directly into an automobile’s 12 V cigarette lighter port by way of the included cigarette lighter adapter or it can be connected directly to an automobile battery’s terminals using the included battery clamp electrical cable. It is used to maintain the charge of said automobile battery.
The 13 watt briefcase solar charger (SKU 68750) is a retail package that is used used to generate and supply electricity to automobile batteries, and to various electronic devices and accessories. The housing of the package is constructed in two halves with a hinge down its center that allows it to open and close like a briefcase would. Each half contains a solar cell that converts sunlight into DC power. The unit contains male and female cigarette lighter adapters, battery terminal clamps, a 12 volt accessory adapter and a battery shoe for cordless tools.
The portable household solar battery charger (SKU 68690) is a solar charger that is used to charge rechargeable household batteries (sizes AA, AAA, C, D and 9V). It is a complete unit that incorporates an amorphous solar cell on its front and various battery ports/slots on its rear. The device generates DC current from sunlight and uses that DC current to recharge drained batteries that are inserted into the charger and then removed for use.
ISSUES:
Are the 1.5 watt solar battery charger, the 13 watt briefcase solar charger and the portable household solar battery charger classifiable under heading 8501, HTSUS, which provides for electric generators, or under heading 8541, HTSUS, which provides for photosensitive semiconductor devices?
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.
The HTSUS provisions under consideration are as follows:
8501 Electric motors and generators (excluding generating sets) …
* * *
8541 Diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes; mounted piezoelectric crystals; parts thereof ….
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). Legal Note 4 to Section XVI (which contains Chapter 85) states that:
Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in chapter 84 or chapter 85, then the whole falls to be classified in the heading appropriate to that function.
Explanatory Note (“EN”) 85.01(II) describes two categories of items that are specifically included in heading 8501. HTSUS. To wit, the EN states:
(II) ELECTRIC GENERATORS
Machines that produce electrical power from various energy sources (mechanical, solar, etc.) are classified here [in heading 8501], provided they are not more specifically covered by any other heading of the Nomenclature.
*** The heading also covers photovoltaic generators consisting of panels of photocells combined with other apparatus, e.g., storage batteries and electronic controls (voltage regulator, inverter, etc.) and panels or modules equipped with elements, however simple (for example, diodes to control the direction of the current), which supply the power directly to, for example, a motor, an electrolyser.
In these devices, electricity is produced by means of solar cells which convert solar energy directly into electricity (photovoltaic conversion).
EN 85.41 provides, in pertinent part:
(B) PHOTOSENSITIVE SEMICONDUCTOR DEVICES
This group comprises photosensitive semiconductor devices in which the action of visible rays, infra-red rays or ultra-violet rays causes variations in resistivity or generates and electromotive force, by the internal photoelectric effect.
*** The main types of photosensitive semiconductor devices are:
*** (2) Photovoltaic cells, which convert light directly into electrical energy without the need for an external source of current. […]
Special categories of photovoltaic cells are:
(i) Solar cells, silicon photovoltaic cells which convert sunlight directly into electric energy. They are usually used in groups such as source of electric power, e.g., in rockets or satellites employed in space research, for mountain rescue transmitters.
The heading also covers solar cells, whether or not assembled in modules or made into panels. However the heading does not cover panels or modules equipped with elements, however simple, (for example, diodes to control the direction of current), which supply the power directly to, for example, a motor, an electrolyser (heading 85.01).
Protestant asserts that Headquarters Ruling Letter (“HQ”) H084604, dated May 3, 2010 (revoking New York Ruling Letter (“NY”) N047472, dated January 9, 2009) controls this case because the device at issue in HQ H084604 lacked blocking diodes and inverters to convert DC power produced by the solar panels into AC power usable by items such as appliances. The role of a blocking diode is to prevent current that flows from a power supply from re-entering that power supply and the role of an inverter is to convert current from DC to AC. However, while a lack of blocking diodes or inverters may be indicative of a module being unable to supply power (or readily usable current in the case of inverters) to an external load, that fact alone is not determinative. What is determinative in such cases is whether or not the device under consideration consisting of panels of photocells is combined with other elements that can supply power directly to another device. The module in question in HQ H084604 could only connect to other solar modules in order to create a single solar panel and could not connect to external devices or an electrical grid. CBP explicitly noted the lack of such connectors in the underlying, and revoked, ruling New York Ruling Letter (NY) N047472 but that fact was not explicitly acknowledged in H084604. In addition, although CBP noted that “[t]he vast majority of applications require that the DC produced by the module be converted into alternating current (‘AC’) by an inverter” and the module in question did not generate AC power, that fact is does not completely illuminate the delineation between headings 8501 and 8541, HTSUS. In any event, CBP correctly concluded that the module was classified in heading 8541 as a solar cell because it could not connect to an external load. Therefore, the pertinent facts of HQ H084604 are distinguishable from the facts at issue here.
The 1.5 watt solar battery charger (SKU 68692) is imported as a retail package that contains a solar cell, a cigarette lighter adapter and a battery clamp electrical cable. The solar cell component is classifiable either in heading 8501, HTSUS, as an electrical generator or in heading 8541, HTSUS, as a photovoltaic cell. The cigarette lighter adapter is classifiable in heading 8544, HTSUS, as an electric insulated conductor fitted with connectors. See NY A80143 (March 5, 1996) and NY N053435 (March 13, 2009) (both classifying vehicle cigarette lighter adapters in heading 8544, HTSUS). The battery clamp charging cable is classified in heading 8536, HTSUS, as electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuit, for a voltage not exceeding 1,000 V. See HQ 968094 and HQ 968095 (both dated April 21, 2006). As imported together, they meet the terms of Note 4 to Section XVI, HTSUS, as a combination of machines consisting of individual components intended to contribute together to a clearly defined function covered by a heading of Chapter 85, HTSUS (either acting as an electrical generator of heading 8501 or a photovoltaic cell of heading 8541). Hence, the 1.5 watt solar battery charger package is classifiable in either heading 8501 or heading 8541, HTSUS.
Heading 8501, HTSUS, provides for electric generators. EN 85.01(II) states that electric generators are “machines that produce electrical power from various energy sources (mechanical, solar, etc.).” The EN further states that “the heading also covers photovoltaic generators consisting of panels of photocells combined with other apparatus, e.g., storage batteries and electronic controls (voltage regulator, inverter, etc.) and panels or modules equipped with elements, however simple (for example, diodes to control the direction of the current), which supply the power directly to, for example, a motor, an electrolyser.” The 1.5 watt solar battery charger produces electrical power from its solar cell. It is equipped with a battery clamp charger cable and a cigarette light adapter that directly supplies power to an external vehicle battery. As such, the entire 1.5 watt solar battery charger functions as a generator described by heading 8501, HTSUS, and is classified there .
The briefcase solar charger (SKU 68750) is imported as a retail package containing two connected solar cells that fold upon each other, male and female cigarette lighter adapters, battery terminal clamps, a 12 volt accessory adapter and a battery shoe for cordless tools. The solar cells component is classifiable either in heading 8501, HTSUS, as an electrical generator or in heading 8541, HTSUS, as a photovoltaic cell. The male and female cigarette lighter adapters, the 12 volt accessory adapter, the battery terminal clamps and the battery shoe are all classifiable in headings other than headings 8501 or 8541, HTSUS. Similar to the 1.5 W solar charger considered supra, the role of the briefcase charger is to capture solar rays and convert those rays into electricity, and transmit that electricity to external devices. The cigarette lighter adapters, battery terminal clamps, accessory adapter and battery shoe merely provide the means to transmit that electricity to external devices. The entire briefcase solar charger functions as an electrical generator described by heading 8501, HTSUS, and is classified there.
The portable household solar battery charger (SKU 68690) is a solar battery charger that is used to charge rechargeable household batteries (sizes AA, AAA, C, D and 9V). It is a complete unit that incorporates an amorphous solar cell on its front and various battery ports/slots on its rear. The device generates DC current from sunlight and uses that DC current to recharge drained batteries that are inserted into the charger, charged and then removed for use. The device is wholly described by heading 8501, HTSUS, as an electrical generator consisting of a photovoltaic cell equipped with slots that allow it to supply solar-generated electricity directly to rechargeable batteries.
HOLDING:
By application of GRI 1 and Note 4 to Section XVI, the 1.5 watt solar battery charger, 13 watt briefcase solar charger and portable household solar battery charger are classified as electrical generators under heading 8501, HTSUS. They are specifically provided for under subheading 8501.31.80, HTSUS, which provides for “Electric motors and generators (excluding generating sets): other DC motors; DC generators: of an output not exceeding 750W: generators…” The 2012 and 2013 column one, general rates of duty are 2.5% ad valorem.
You are instructed to DENY the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website located at www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division