CLA-2 RR:CR:GC 965772 KBR
Port Director
U.S. Customs Service
1000 Second Avenue Suite 2100 Seattle, WA 98104
RE: Protest 3001-02-100138; Rechargeable Emergency Lights
Dear Port Director:
This is our decision on protest 3001-02-100138 filed by counsel on behalf of Fingerhut Corporation, against your action regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of rechargeable emergency lights. The entries under protest were liquidated on March 29, 2002, and this protest was timely filed on May 6, 2002.
FACTS:
The product involved in this protest is a pair of rechargeable emergency lights. Each light is shaped like a typical flashlight: a barrel-like handle holding the rechargeable nickel-cadmium AA batteries, with a reflector and krypton light bulb at the end. The illumination from the light is a directed beam rather than a light for general illumination. Each light is intended to be plugged into a 120-volt electrical outlet. The light has a retractable plug which folds into the handle of the light when disconnected from the electrical outlet. On the opposite side of the handle from the retractable plug is a “soft glow” night light panel which operates while the unit is plugged into an electrical outlet. The article will automatically light if there is a power failure while the unit is plugged into an electrical outlet. While plugged into an electrical outlet the directed beam of the light is pointed directly downward. A fully charged light will operate continuously for approximately 45 minutes. The protestant claims that the rechargeable electric light should be classified in subheading 9405.40.80, HTSUS, as other electric lamps and light fittings, other.
ISSUE:
What is the classification under the HTSUS of the rechargeable electric light?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, 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 may then be applied.
The HTSUS provisions under consideration 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.
9405 Lamps and lighting fittings including searchlights
and spotlights and parts thereof, not elsewhere
specified or included; illuminated signs, illuminated
nameplates and the like, having a permanently fixed
light source, and parts thereof not elsewhere specified
or included:
9405.40 Other electric lamps and lighting fittings:
9405.40.80 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 under the System. Customs believes the ENs should always be consulted. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
We first consider classification within heading 8513, HTSUS, because classification within heading 9405 is precluded if the article is classifiable within chapter 85. Legal Note 1(f) to Chapter 94 provides, in pertinent part, as follows:
- This Chapter does not cover:
* * * * *
(f) Lamps or lighting fittings of Chapter 85
The ENs to heading 8513, HTSUS, provide, in pertinent part:
This heading covers portable electric lamps designed to function
by means of a self contained source of electricity (e.g., dry cell,
accumulator or magneto).
They comprise two elements (i.e., the lamp proper and the source of electricity) which are usually mounted and directly connected together, often in a single case. In some types, however, these elements are separate and are connected by wires.
The term “portable lamps” refers only to those lamps (i.e., both the lamp and its electricity supply) which are designed for use when carried in the hand or on the person. They usually have a handle or a fastening device and may be recognized by their particular shapes and their light weight. The term therefore excludes lighting equipment for motor vehicles or cycles (heading 85.12), and inspection lamps and the like which are connected to a fixed installation (heading 94.05).
The lamps of this heading include:
(1) Pocket lamps. Some (“dynamo lamps”) are operated by a magneto, hand driven by means of a spring loaded lever.
(2) Other hand lamps (including those with an adjustable beam). Hand lamps are often fitted with a simple device for hanging them temporarily on a wall, etc., while others are designed so that they can be placed on the ground.
Customs has long held that “portability” is an essential characteristic of “flashlights.” The term “flashlight” has been judicially determined to encompass small, battery operated, portable electric lights. Sanyo Electric Inc. v. United States, 496 F.Supp. 1311, aff’d., 642 F.2d 435 (1981). Flashlights have been defined as small, battery operated, portable electric lights normally held in the hand by the housing. The primary function of a flashlight is to project a beam of light. See HQ 951855, dated July 24, 1993; HQ 084852, dated March 28, 1990; HQ 953262, dated July 26, 1993; and HQ 962528, dated February 18, 2000. The ENs to heading 8513, HTSUS (above), list portability as a required characteristic of articles classified as flashlights.
The rechargeable emergency lights at issue are designed to have a single use and function: to provide light. The article accomplishes this function in three ways: as a flashlight, as a security light (i.e., a light that illuminates automatically during a power outage), and as a night light. The article is portable (capable of being carried by hand), lightweight, battery powered (with a feature that automatically recharges the battery when the article is not in use), and the lighting element is housed in a single case with the power source - the rechargeable battery. Thus, the article meets every criterion required for classification as a flashlight. See HQ 962528 (February 18, 2000).
The protestant cites HQ 950671 (February 25, 1992), which found that a Sanyo rechargeable security light was classified in subheading 9405.40.80, HTSUS, and claims that the instant light should be classified similarly. However, the instant light is distinguishable from the Sanyo light in HQ 950761. The Sanyo light was described as:
The sample submitted is the Sanyo rechargeable security light, model no. FL-4026 which measures 2 7/16" x 3 1/4" x 1 3/8" and weighs 5 ounces. It uses a 2.5 [volt] 0.3 [amp] bulb, which emits light over a small, unfocused area. It has a plastic housing and a metal plug that cannot be retracted into the housing when the light is held in the hand. This security light is capable of use as a “flashlight,” night light [when the room is dark the night light automatically turns on when plugged into a wall outlet], or a light that can be used when a power failure occurs. It contains a built-in charging unit to recharge its battery. It can be left plugged into any 120-volt outlet and it will charge the battery when the light is not in use. The storage battery powers the light and the electronic circuitry will automatically activate the light when the circuit experiences a power outage.
* * * * *
While the security light is light weight and is capable of being used in the hand, it was not designed [emphasis in original] for use in the hand or on the person…. It may then be removed from the wall outlet and, because of its “flat-bottomed” design, placed on a nightstand or some other table for use as a night light.
[Emphasis added.]
Unlike the Sanyo light in HQ 950671, the instant light is designed for use in the hand. The instant light has a retractable plug which makes the light easily portable in the palm of the hand. The plug in the Sanyo light did not retract making the Sanyo light not easily used for carrying as a flashlight. The instant light emits a beam of light, rather than emitting light “over a small, unfocused area” like the Sanyo light. (Cf. Sanyo, 496 F. Supp. at 1314, “the aim of a flashlight is to light up something in the distance, so that the light is focused as much as possible.”) The shape of the body of the instant light and type of beam of the instant light are not conducive to placing the light on a table for use in illuminating a general area as was the Sanyo light. Most electrical sockets in homes and offices are situated at ankle or calf level and while plugged in, the beam of light is directed downward which only operates to attract a person to the light. It is reasonable to conclude that one would, in the event of a power outage, follow the emanating light to its source and remove the light from the wall socket in order to maneuver through the darkened home, carrying the light as one would a flashlight. The Sanyo light was a box with the light emanating from the front, sides and top so that the light could be left in the electrical outlet and illuminate the general area.
The protestant argues that the short duration time of the charge while the instant flashlight is in use, 45 minutes, weighs against classifying the article as a flashlight. The protestant cites HQ 962528 (February 18, 2000) where a flashlight charge could last for up to 5 ½ hours. However, Customs has also found that an article is classifiable as a flashlight with a much shorter charge life. See HQ 084852 (March 28, 1990) (the battery charge only lasted for one hour). In fact, Customs stated in HQ 955356 (May 20, 1994), that “[t]he short life of the [article], i.e., the batteries are expected to last only a few hours, is of no importance. There is no durability requirement for classification under heading 8513, HTSUS.”
Customs stated in HQ 084852 (May 28, 1990) that:
We note that the power failure warning circuitry and components … 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.
In comparing headings 8513 and 9405 for a rechargeable power failure light, Customs stated in HQ 962528 (February 18, 2000) that:
The fact that it is manufactured to function during a power outage is an added feature; the article is readily available year round for use as a flashlight. We find that the principal function of the Coleman light is that of a hand-held, battery-powered, portable source of light – a flashlight. The article is classifiable within heading 8513. Therefore, classification within heading 9405 is precluded.
This determination is consistent with several prior rulings: HQ 088993, dated July 29, 1991, in which a battery operated, portable filament lamp was classified in subheading 8513.10.20, HTSUS; HQ 084852, dated March 28, 1990, in which rechargeable emergency lights were classified as flashlights; HQ 082594, dated May 3, 1989, in which an emergency power failure light was classified in subheading 8513.10.20, HTSUS.
In the instant case, we find that as in HQ 962528, above, the principal function of the rechargeable emergency light is that of a hand-held, battery-powered, portable source of light – a flashlight. Therefore, classification in heading 9405 is precluded pursuant to Note 1(f) of chapter 94. Therefore, we find that, pursuant to GRI 1 the rechargeable emergency light is classified in subheading 8513.10.20, HTSUS, as portable electric lamps designed to function by their own source of energy, lamps, flashlights.
HOLDING:
In accordance with the above discussion, the rechargeable emergency light is classified in subheading 8513.10.20, HTSUS, as portable electric lamps designed to function by their own source of energy, lamps, flashlights.
The protest should be DENIED. 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.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division