CLA-2 OT:RR:CTF:TCM H010636 ADK
Assistant Port Director
United States Customs and Border Protection
Trade Operations
Chicago, Illinois 60607
RE: Light Emitting Diode (LED) top lights “DOT-IT”; Protest No. 3901-06-101350
Dear Assistant Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 3901-06-101350, timely filed on behalf of Osram Sylvania Products, Inc. (Osram), concerning classification of the LED top lights “DOT-IT” under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise, the “DOT-IT,” style number 33789, is a battery operated LED tap-light lamp measuring approximately 2½ inches in diameter and 1 inch in height. The DOT-IT features a 1½ inch clear dome lens over 3 LED lights which are held in place by an anodized aluminum bezel. The light is activated by depressing this lens. The base of the DOT-IT light is constructed of plastic and contains 3 AAA size batteries. The light features an adhesive backing which encompasses the entire base. The DOT-IT is designed to be securely fastened to a flat surface in various locations providing light where needed.
Osram entered the merchandise under subheading 8541.40.20, HTSUS, which provides for: “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: Photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes: Light-emitting diodes (LED’s).”
After entry on March 6, 2006, the Port of Chicago liquidated the subject DOT-IT under subheading 8513.10.2000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for: “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: Flashlights.”
After liquidation, Osram argued, in the alternative, that the DOT-IT light was classifiable under subheading 9405.40.8000, HTSUSA, which provides for: “Lamps and light 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: Other electric lamps and lighting fittings: Other.”
ISSUE:
What is the proper classification under the HTSUS for the subject DOT-IT light?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation the entry involved (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 3901-06-101350 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 (a) because the decision against which the protest was filed involves is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to substantially similar merchandise. In their submission, the Protestant specifically identified the decisions which are alleged to be inconsistent with the Port’s actions.
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.
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:
8513.10.2000 Flashlights
* * *
8541 Diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not made up into panels; light-emitting diodes; mounted piezoelectric crystals; parts thereof:
8541.40 Photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes:
8541.40.2000 Light-emitting diodes (LED’s)
* * *
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 permanently fixed light source, and parts thereof not elsewhere specified or included:
9405.40 Other electric lamps and lighting fittings:
9405.40.8000 Other
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor 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. The relevant ENs are as follows:
The 2002 version of the EN to heading 8513, HTSUS (EN 8513), provides, in pertinent part:
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…
(Emphasis in original)
* * *
The EN to heading 9405, HTSUS (EN 9405), provides, in pertinent part:
Lamps and Light Fittings Not Elsewhere Specified or Included
(5) Portable lamp (other than those of heading 85.13), e.g., hurricane lamps; stable lamps; hand lanterns; miners’ lamps; quarrymen’s lamps.
(Emphasis in original)
* * *
Osram originally sought to classify the DOT-IT under subheading 8541.40.20, HTSUS. That subheading provides for individual light-emitting diodes (LEDs). See Headquarters Ruling Letter (HQ) 965524, dated August 29, 2002 (Classification of laser diodes and laser diode modules under heading 8541, HTSUS, as LEDs). LEDs that have been incorporated into a lamp housing are beyond the scope of heading 8541, HTSUS. Such articles are instead classifiable as complete lamps. This view is in keeping with the Court of Appeals for the Federal Circuit’s decision in ABB v. United States, 421 F.3d 1274 (2005) (Discussing the meaning of the terms “assembled” v. “distinct and separate commercial entity” in relationship to fiber optic cables and electric cables). See also HQ 966401, dated June 29, 2004 and New York Ruling Letter (NY) K85367, dated May 17, 2004. In the present matter, the LEDs are incorporated into the lamp housing and are held in place by an anodized aluminum bezel. Consistent with ABB and HQ 966401, the DOT-IT is classifiable as a lamp, not as an individual LED. It is therefore excluded from heading 8541, HTSUS.
Lamps such as the subject article are classifiable in heading 8513, HTSUS, provided that they are “portable” within the meaning of the HTSUS. EN 8513, defines “portable” as referring only to those lamps which are “designed for use when carried in the hand or on the person.” Classification of the subject merchandise, therefore requires an analysis of heading 8513, HTSUS. If designed for use when carried in the hand, i.e. portable, it will be classified under heading 8513, HTSUS. If not, the DOT-IT is excluded from heading 8513, HTSUS, and classifiable instead under the basket provision for lamps, heading 9405, HTSUS.
“Whether an article is ‘specially designed’ or ‘specially constructed’ for a particular purpose may be determined by an examination of the article itself, its capabilities, as well as its actual use or uses. One must look at both the structural and auxiliary design features, as neither by itself is determinative.” Western States Import v. United States, 20 C.I.T. 736 (1996). In the present matter, we must determine whether the DOT-IT light has any particular design features that adapt it for the stated purpose of being either carried in the hand or on the person. See Headquarters Ruling Letter (HQ) 965714, November 15, 2002. These design features include, but are not limited to, handles, fastening devices, ergonomic shapes capable of fitting easily into the hand, and use of light weight materials.
Although the DOT-IT is lightweight, it does not posses any other design feature to indicate that it is “designed for use when carried in the hand or on the person.” The article’s shape is such that it is not easily used while carried in the hand nor does it have a handle or fastening device. Instead, the article’s adhesive backing denotes that it is intended for placement on a flat surface such as a table, or a wall. As a result, it is excluded from heading 8513, HTSUS and classifiable instead under heading 9405, HTSUS.
This conclusion is consistent with CBP administrative precedent cited by Osram. In New York Ruling Letter (NY) L81488, dated January 14, 2005, CBP determined that a battery-operated, disk-shaped plastic tap light was “not of the same class or kind of merchandise that is covered under heading 8513, HTSUS.” As a result, the tap light was classified under subheading 9405.40.8000, HTSUSA, as an “other electric lamp.” See also NY L81488, dated January 14, 2005 (Classification of a battery-operated disk-shaped tap light under subheading 9405.40.8000, HTSUSA); and NY E88777, dated November 2, 1999 (Classification of a round-shaped battery operated plastic lamp, known as a tap-light under subheading 9405.40.8000, HTSUSA). In keeping with this line of rulings, the DOT-IT, also a tap light, is classifiable under subheading 9405.40.8000, HTSUSA.
HOLDING:
By application of GRI 1, the portable candle lamp is classifiable under heading 9405, HTSUS. Specifically, it is classifiable under subheading 9405.40.8000, HTSUSA, which provides for: “Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having permanently fixed light source, and parts thereof not elsewhere specified or included: Other electric lamps and lighting fittings: Other.” The 2006 column one, general rate of duty was 3.9 percent ad valorem.
You are instructed to DENY the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. In accordance with the Protest/Petition Handbook (CIS HB, January 2002, pp. 18 and 21), 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 in accordance with the decision must be accomplished prior to mailing of this decision. Sixty days from the date of the decision the Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web 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 Faciliation Division