CLA-2:RR:CR:GC 962258 AML
Port Director
U.S. Customs Service
4430 East Adamo Drive
Tampa, Florida 33605
RE: Protest 1801-97-100010; xenon and krypton lamps used in flashlights; EN 85.39
Dear Port Director:
The following is our decision regarding protest 1801-97-100010, concerning your classification of xenon and krypton lamps used in flashlights pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Photocopies and samples were provided for our examination.
FACTS:
The articles are described by the protestant as krypton and xenon lamps which are miniature incandescent lamps used in flashlights. Literature provided by the protestant describing the articles makes clear that the lamps produce light by an incandescent filament, and that the lamps are manufactured containing either xenon or krypton gas. The protestant states:
Bright Lite designed the K-series with the thickest possible tungsten wire to meet the customer’s life requirements, and used the tightest possible pitch to compensate for brightness lost due to thick wire . . . [b]ecause Xenon gas has a higher molecular weight than Krypton gas, Xenon lamps burn brighter and last longer than Krypton-filled flashlight lamps.
Technical literature indicates that the use of these gases as a “fill” in the bulbs improves the light output:
Gas-filled lamps have most of the air removed, and the bulb is then filled with an inert gas that acts to slow down the rate at which tungsten molecules evaporate from the filament . . . The gas krypton (atomic weight 82.9) has become available and is now used as a fill gas. Krypton lamps produce an improvement of 7 - 20% in light output. McGraw-Hill Scientific and Technical Encyclopedia under the heading “incandescent lamp,” Grolier, Inc., 1992.
The articles were entered on December 14, 1995 and the entry was liquidated on October 25, 1996, with classification in subheading 8539.39.00, HTSUS, as other discharge lamps. This protest was filed on January 21, 1997.
Citing the subheading “flashlight lamps” in the HTSUS, descriptive literature and a dictionary definition of “incandescent lamp,” the protestant contends that the articles are properly classifiable in subheading 8539.29.30, HTSUS, as other electrical filament or discharge lamps, other filament lamps, other, other.
ISSUE:
Whether the xenon and krypton lamps used in flashlights are classifiable under subheading 8539.29.30, HTSUS, as other filament lamps, or subheading 8539.39.00, HTSUS, as discharge lamps?
LAW AND ANALYSIS:
Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514 (c)(3)(A)) and the matter is protestable (see 1514 U.S.C. 1514 (a)(2) and (5)).
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
The subheadings under consideration are as follows:
8539 Electrical filament or discharge lamps,
including sealed beam lamp units and ultra
violet or infrared lamps; arc lamps; parts
thereof:
Other filament lamps, excluding ultraviolet or infrared lamps:
8539.29 Other:
Designed for voltage not exceeding 100 V:
8539.29.30 Other:
Discharge lamps, other than ultraviolet lamps:
8539.39.00 Other.
.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the ENs should always be consulted. See T.D. 89 80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
There is no dispute that the articles are classifiable in heading 8539. The crux of the matter is which subheading best describes the xenon and krypton gas filled filament bulbs for flashlights. EN 85.39, pp. 1507 - 1509, provides that:
The heading covers all electric light lamps, whether or not specially designed for particular uses (including flashlight discharge lamps).
The heading covers filament lamps, gas or vapour discharge lamps and arc lamps.
* * *
(B) OTHER FILAMENT LAMPS, EXCLUDING ULTRA VIOLET
OR INFRA RED LAMPS (see Part (D))
The light is produced by a filament (metal or carbon) which is heated to incandescence by the passage of an electric current, the glass envelope (sometimes coloured) being either evacuated or filled with an inert gas under low pressure; in the base, which may be of the screw or bayonet type for fixing in the lamp holder, are the necessary electrical contacts.
These lamps are of various shapes, e.g., spherical (with or without a neck); pear or onion shaped; flame shaped; tubular (straight or curved); special fancy shapes for illuminations, decorations, Christmas trees, etc.
This group also covers halogen lamps.
(C) DISCHARGE LAMPS, OTHER THAN ULTRA VIOLET LAMPS (see Part (D))
These consist of a glass envelope (usually tubular) or a quartz envelope (usually in an outer envelope of glass), furnished with electrodes and containing, under low pressure, either a gas which becomes luminous under the influence of an electric discharge or a substance which gives off a vapour having similar properties; certain lamps may contain both a gas and a vapour producing substance. Some lamps have valves for the removal of compounds resulting from the action of the gas on the electrodes; others may be vacuum jacketed or water cooled. In some cases the internal wall of the lamps is coated with special substances which transform the ultra violet rays into visible light thus increasing the efficiency of the lamp (fluorescent lamps). Some lamps operate on high voltages, others on low.
The principal lamps of this kind include:
(1) Gas discharge tubes containing gases such as neon, helium, argon, nitrogen or carbon dioxide, including flashing discharge lamps used for photography or stroboscopic examination.
(2) Sodium vapour lamps.
(3) Mercury vapour lamps.
(4) Gas filled dual lamps, in which the light is produced both by an incandescent filament and a gas discharge.
(5) Metal halide lamps.
These lamps are used for many purposes, e.g., domestic lighting; street lighting; office, factory, shop, etc., lighting; lighting of machines; and lighting for decorative or publicity purposes. The heading includes simple straight or curved tubes, and tubes in various complex forms (e.g., scrolls, letters, figures and stars).
Thus, the differentiations in the EN between filament and discharge lamps which contain gases is that in the case of the former, light is produced by a filament, and with the latter, light is produced by electrodes and a gas discharge. The filament bulbs under consideration contain either of two inert gases, krypton or xenon, which enhance the brightness and wear of the tungsten filament. It is the filament which glows and produces light, not a gas discharge.
This distinction in the EN is consistent with the encyclopedic and scientific definitions and explanations of the difference between filament and discharge lamps.
The Encyclopedia Britannica (1993), under the heading “lamps” provides the following definitions and explanations of electric lamps and discharge lamps while tracing the developmental history of those articles:
An incandescent lamp (q.v.) Is one in which a filament gives off light when heated to incandescence by an electric current.
* * *
The final development of the incandescent lamp was the result of concurrent work by [Sir Joseph Wilson] Swan [of England] and Thomas A. Edison of the United States, using the vacuum pump of Hermann Sprengel and Sir William Crookes. These lamps by Swan and Edison consisted of a filament of carbon wire in an evacuated glass bulb, two ends of the wire being brought out through a sealed cap and thence to the electric supply. When the supply was connected, the filament glowed and, by virtue of the vacuum, did not oxidize away quickly as it would have done in air.
* * *
The most important subsequent improvement in the incandescent lamp was the development of metallic filaments, particularly of tungsten. Tungsten filaments quickly replaced ones made of carbon, tantalum, and metalized carbon in the early 1900s[.] Tungsten is highly suitable for such lamps because of all the materials suitable for drawing into filament wires, it has the highest melting point. This means that lamps can operate at higher temperatures and therefore emit both whiter light and more light for the same electrical input than was possible with less durable and less refractory carbon filaments.
* * *
The early Tungsten lamps, like carbon lamps, suffered from the migration of filament molecules to the glass bulb, causing a blackening of the bulb, a loss in light output, and progressive thinning of the filament until it broke. About 1913, it was found that a small amount of inert gas (argon or nitrogen) reduced migration and enabled the filament to be run at a higher temperature, giving a whiter light, higher efficiency, and longer life. Further improvements followed including the development of the coiled filament.
The Encyclopedia Americana (1993) provides similar definitional explanations under the heading “electric lighting” at pp. 127-128; as does the McGraw-Hill Scientific and Technical Encyclopedia under the heading “incandescent lamp,” with the functional differences being noted under the headings “fluorescent lamp,” “metal halide lamp,” “neon glow lamp,” and “vapor lamp.” For further insight see also the Electrical Engineering Handbook, CRC Press, Inc., 1993, pp. 2257-2276.
Thus, the lamps at issue are the progeny of the early filament bulbs developed by Edison. The filament, made of tightly wound tungsten, produces light when electrified. The inert, noble gas contained in the bulb, either xenon or krypton, slows the deterioration of the tungsten, thereby enhancing the longevity of the filament. The inert gas does not discharge and does not create light. Therefore, the lamps are functionally incandescent lamps which produce light by means of a filament and are classified under subheading 8539.29.30, HTSUS (1996).
HOLDING:
The articles are classified under subheading 8539.29.30, HTSUS (1996), as other electrical filament or discharge lamps, other filament lamps, other, other (flashlight lamps). The column 1, general rate is duty free.
The protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs 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 of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division