CLA-2 OT:RR:CTF:TCM H042586 ARM
Mr. Hillel M. Tuchman
Simon Gluck & Kane LLP
1700 Broadway, Suite 3100
New York, NY 10019
RE: Classification of a fiber optic lamp
Dear Mr. Tuchman:
This is in reply to your request submitted on September 22, 2008, to the Director, National Commodity Specialist Division, Customs and Border Protection (CBP), seeking a binding ruling concerning the classification of a fiber optic lamp under the Harmonized Tariff Schedule of the United States (HTSUS). Your request was forwarded to our office for reply. We have also considered the arguments you and Mr. Martin Weiss presented in a telephone conference with a member of my staff on January 15, 2009.
FACTS:
The merchandise at issue is a fiber optic lamp consisting of a plastic conical base measuring 3¼ inches in height, with a 3-inch diameter base that tapers to a 1½-inch diameter top. Attached to the top of the base are hundreds of thin plastic fibers that fan out in the shape of a spray pattern that measures approximately ¾ inches in width at its base and approximately 15 inches in width at the widest part of the spray pattern. The conical base houses an internal blue light bulb that is powered by two AA batteries and can be turned on and off by a slide switch. When the light is activated by the slide switch, the light from the bulb is diffused through the fibers and pinpoints of blue light glow at the ends of the individual fibers, creating a decorative and mood-setting effect. The light created illuminates the base and tips of the fibers only.
ISSUE:
Whether the subject fiber optic lamp is a lamp of heading 9405, HTSUS, or an electrical apparatus of heading 8543, HTSUS.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). 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 may then be applied.
The tariff provisions at issue are the following:
8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
* * * * *
8543.70 Other machines and apparatus:
* * * * *
8543.70.96 Other
* * * * *
9405 Lamps and lighting fittings including searchlights and spot-lights 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
* * * * *
When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to heading 85.43 state, in pertinent part, the following:
This heading covers all electrical appliances and apparatus, not falling in any other heading of this Chapter, nor covered more specifically by a heading of any other Chapter of the Nomenclature, nor excluded by the operation of a Legal Note to Section XVI or to this Chapter. The principal electrical goods covered more specifically by other Chapters are electrical machinery of Chapter 84 and certain instruments and apparatus of Chapter 90.
The electrical appliances and apparatus of this heading must have individual functions. . .
Most of the appliances of this heading consist of an assembly of electrical goods or parts (valves, transformers, capacitors, chokes, resistors, etc.) operating wholly electrically. . . .
The heading includes, inter alia :
* * * * *
(16) Electro-luminescent devices, generally in strips, plates or panels , and based on electro-luminescent substances (e.g., zinc sulphide) placed between two layers of conductive material.
The ENs to heading 9405 state, in pertinent part, the following:
LAMPS AND LIGHTING FITTINGS, NOT ELSEWHERE SPECIFIED OR INCLUDED
Lamps and lighting fittings of this group can be constituted of any material (excluding those materials described in Note 1 to Chapter 71) and use any source of light (candles, oil, petrol, paraffin (or kerosene), gas, acetylene, electricity, etc.). Electrical lamps and lighting fittings of this heading may be equipped with lamp holders, switches, flex and plugs, transformers, etc., or, as in the case of fluorescent strip fixtures, a starter or a ballast.
This heading covers in particular:
(1) Lamps and lighting fittings normally used for the illumination of rooms, e.g. : hanging lamps; bowl lamps; ceiling lamps; chandeliers; wall lamps; standard lamps; table lamps; bedside lamps; desk lamps; night lamps; water tight lamps.
This group also includes searchlights and spotlights. These throw a concentrated beam of light (which can usually be regulated) over a distance onto a given point or surface, by means of a reflector and lenses, or with a reflector only. The reflectors are usually of silvered glass, or of polished, silvered or chromium plated metal. The lenses are usually plano convex or stepped (Fresnel lenses).
* * * * *
Searchlights are used, e.g., for anti aircraft operations, and spotlights, e.g., for stage sets and in photographic or film studios.
You argue that the merchandise is a novelty item which includes lighting elements to enhance its decorative effects but which light provided is not useful. Accordingly, you maintain that the case of New York Merchandise Co. v. United States, 1 C.I.T. 200 (1981) is controlling and the instant article is not classified in heading 9405, HTSUS. In that case, the court found the term “lamps,” in the Tariff Schedule of the
United States (TSUS), fell under the more general heading of “illuminating articles.” Accordingly, the court reasoned that lamps by definition, must provide enough light to illuminate articles. However, you recognize that the term “illuminating articles” no longer appears in the HTSUS.
The courts have addressed the question of a change in tariff language between the TSUS and the HTSUS finding that a change in the language of a statute is generally construed to import a change in meaning. . . . Ruth F. Sturm, Customs Laws and Administration § 51.7 at 57 (1995); see also Schott Optical Glass, Inc. v. United States, 11 C.I.T. 899, 678 F. Supp. 882, 887-88 (1987), aff'd, 862 F.2d 866 (Fed. Cir. 1988), Bausch & Lomb v. United States, 148 F.3d 1363 (1998), Lonza, Inc. v. United States, 46 F3d 1098, and Primal Lite, Inc. v. United States, 22 C.I.T. 697; 15 F. Supp. 2d 915; (1998).
In Headquarters’ Ruling letter (HQ) 954845, dated May 26, 1994, we elaborated on the applicability of the New York Merchandise decision under the HTSUS. Specifically, we stated:
The language of the HTSUS is significantly different from that of the TSUS. The term "illuminating article" is no longer used. The HTSUS provision is "other electric lamps and light fittings". In adopting the HTSUS, Congress noted that "[i]n light of the significant number and nature of changes in nomenclature from the TSUS to the HTS, decisions by the Customs Service and the courts interpreting nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTS." House Conference Rep. No. 100-576 at 549 (1988); see HQ 954478 (August 10, 1993).
Insofar as the term “lamps” is not defined in the HTSUS, CBP employed the use of the dictionary definitions of lamps. We noted:
"Lamp" is defined in The Random House College Dictionary, Random House, Inc. (1973), at 752, as "a device providing an isolated source of artificial light". Webster’s New Collegiate Dictionary, G. & C. Merriam Company (1979), at 639, defines "lamp" as "any of various devices for producing light or heat".
You cite NY N028982, dated June 7, 2008 (illuminated picture decoration) and NY N082260, dated June 13, 2008 (flashing eye set), for the proposition that articles that only illuminate themselves and do not provide any useful or meaningful light are not classified as lamps in heading 9405. Insofar as these articles do not meet the definition of a lamp, they are not persuasive.
You also cite NY N022853, dated February 18, 2008. The merchandise in that ruling is a mini volcano lamp with a single LED illuminating the interior of the volcano in order to increase the realistic appearance of the imitation volcano. This article is also distinguishable from the instant merchandise insofar as the mini volcano has a decorative purpose in and of itself and the light enhances that purpose. Here, the light itself is that which imparts the decorative effect and visual appeal to the article.
The instant merchandise is referred to as a lamp. Moreover, the instance merchandise gives enough light at its base to visualize the surrounding area, much like a night light, which is an example listed in the EN to heading 9405, HTSUS. We find that the instant merchandise meets the common and commercial meaning of lamp, as cited above. Further, we note that our decision is consistent with prior decisions classifying similar merchandise. See HQ 965248, dated July 26, 2002 (AquaScape Bubble Light), New York Ruling Letter (NY) F83270, dated March 6, 2000 (light scamp scarecrow), HQ 966952, dated August 18, 2004, affirming NY G81588, dated September 18, 2000 (litecube), NY G89961, dated April 30, 2002 (bubble lamp), NY H82172, dated June 29, 2001 (Aqua bubbler lamp), and NY G85942, dated January 22, 2001 (unfinished bubble light).
Lastly, in a recent telephone conference, you argued that candles in metal holders, which give off little light, have historically been classified as composite goods under the heading describing the material of the holder. Indeed, CBP argued this position in Pomeroy Collection, Ltd. v. United States, 559 F. Supp. 2d 1374 (Ct. Int'l Trade 2008). In granting Pomeroy’s motion for summary judgment, the court found that votive candles in glass holders are properly classified in heading 9405, HTSUS, as "Lamps and lighting fittings”. The court was unpersuaded by the argument that the votive candle lamp was essentially a decorative glass article, emitting little useable light, in classifying the articles as lamps of heading 9405, HTSUS.
For all of the aforementioned reasons, the instant merchandise is classified in heading 9405, HTSUS. Because heading 9405, HTSUS, completely describes the merchandise, it cannot be classified in heading 8543, HTSUS.
HOLDING:
By application of GRI 1, the fiber optic lamp is classified in heading 9405, HTSUS. It is specifically provided for in subheading 9405.40.80, HTSUS, which provides for “Lamps and lighting fittings including searchlights and spot-lights and parts thereof, not having a permanently fixed light source, and parts thereof not elsewhere specified or included: Other electric lamps and lighting fittings: Other. “ The 2009 column one general rate of duty is 3.9% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch