CLA-2 OT:RR:CTF:VS H215117 RSD
TARIFF NO: 8513.10.20
Mr. Juan Enrique-Cienfuegos
Southwest Synergistic Solutions
215 N. Center, # 703
San Antonio, Texas 78202
RE: Classification and Country of Origin Marking of Special Ops Flashlights, Sportsman Flashlights, and Blank LEDs Assemblies
Dear Mr. Cienfuegos:
This letter is in response to your letter of July 12, 2011, to our National Commodity Specialist Division, in which you requested a binding ruling pertaining to the classification, under the Harmonized Tariff Schedule of the United States (HTSUS) of three items, the special ops flashlight, sportsman flashlight and light-emitting diodes (LEDs) blank assemblies. Your letter was forwarded to this office for a response. Samples of the articles were enclosed for our consideration.
You also request a determination concerning the country-of-origin marking of the subject goods.
FACTS:
The imported product under consideration is a LED blank assembly. The LED blank assembly is sold to hobbyists who want to create their own unique lights. The assembly can be made into two types of flashlights, the Special Ops Flashlight and the Sportsman Flashlight. The LED blank assemblies are cylindrical in shape and measure approximately 13/8 inches tall with an outside diameter of 7/8 of an inch. The LED blank assemblies consist of multi-colored LEDs with Printed Circuit Boards (PCBs) attached to them. They incorporate four LEDs and a push-button switch that controls the LEDs. Both the LEDs and PCBs are made in India, where the two items are attached together. The power source used for the LED blank assemblies is a 3 volt lithium battery which is imported separately and sourced from China. The battery is attached to the LED
blank in the United States. The remaining part that is attached to the LED blank assembly in the U.S. is the plastic battery tube. This is done by holding the PCB and outwardly folding the soldered battery straps to create a slight V shape; inserting the PCB into the battery tube; inserting the 3 V Lithium battery into the bottom side of the battery tube; sliding the battery back plate into place to close the circuit; and testing the LED blank.
You claim the LED assembly is a blank, which can be utilized for several types of lights including flashlights, signal lights, ornamental lights, or novelty lights. The LED illumination is directional and the boards are currently imported with four different LED control software programs. The PCB can be reprogrammed in the United States depending on the demand at the time for a particular version. Furthermore, the sequences can be customized based on the customer’s desired settings.
Special Op Flashlight and Sportsman Flashlight
The LED assembly blanks may be used to produce two types of flashlights. The first product is a Special Ops Flashlight containing an infrared LED and 3 visible colored lights. The second flashlight contains visible colored lights and is called the Sportsman Flashlight. The various color wavelengths offer the user a variety of illumination options. The infrared LED is used by special forces or SWAT teams to illuminate maps or their walking path, and can only be seen with infrared night vision optics. The red light is used for low light illumination to preserve night vision equipment. The yellow light is used
for low light illumination and animal watching. The green light is used for map reading. The blue light is used for fluid trail blood tracking. The Special Ops and Sportsman flashlight consists of the following components:
LED blank assemblies,
Silicon Flashlight top,
Silicon Ross bottomed magnetic end cap,
Magnets,
Packaging tube and cap, and
Instructions.
The assembly for both flashlights is as follows:
Select proper LED blank software version;
Insert LED blank into Silicon Flashlight top;
Place magnets inside Cross bottomed Magnetic end cap;
Attach the Silicon Cross bottomed magnetic end cap to assembled Silicon Flashlight light top;
Test for proper function;
Place the instructions inside packaging tube; and
Place the finished flashlight into the packaging tube and cover with top.
You indicate that all the software for the flashlights is written in the United States. The PCB’s used in the LED blank assemblies produced in India will always be programmed with one version of the U.S. software. Some will have only one function programmed at the time of import and if reprogramming is required, it will be reprogrammed in the United States using the programming pads found on the backside of the PCB. The boards are reprogrammed on a reprogramming dock for loading the new software. Other PCB’s will be set to a default mode, but the user will have the ability to select more than 15 different function modes already found in the PCB program utilizing the switch found on the PCB to set the PCB into program mode. The program will be selected by the number of clicks the switch receives.
You report that you are currently able to sell a version of the LED blank assemblies with multiple functions which could be used as a flashlight, a novelty device, a signaling device, or a tactical light. The end user determines how they want to use the LED blank assembly. Buyers this version will be made aware of their ability to switch between different program modes and how to do it. However, for the Sportsman Flashlight or the Special Ops Flashlight, the LED blank assemblies program selection will be entered prior to shipping, and there is no ability to change modes. The software may be upgraded, but the LED blank assemblies need to be returned to the company for reprogramming. Once the LED blank assembly is returned, it no longer has to be disassembled to reach the reprogramming pads. The switch may be manipulated to give the customer their desired change.
ISSUES:
I) Are the imported LED blank assemblies classified as light-emitting diodes (LED) or as portable electric lamps under the HTSUS?
II) What is the country of origin of the above mentioned flashlight devices for marking purposes?
LAW AND ANALYSIS:
1) CLASSIFICATION
Merchandise imported into the United States is classified under the HTSUS. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative
section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in
the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs 1 through 5.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) represent the official interpretation of the Harmonized System at the international level and facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
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:
Photosensitive semiconductor devices, including
photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes:
8541.40.20 Light-emitting diodes (LED's).
* * *
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:
Lamps
8513.10.20 Flashlights
8513.90 Parts
8513.90.20 Of flashlights
* * *
Since the Special Ops Flashlights and the Sportsman Flashlights are not imported but are assembled in the United States, their classification does not need to be determined in this decision. However, the LED blanks are imported
separately into the United States and they are used to produce the two types of flashlights. Thus, you request a determination how the LED blanks assemblies without batteries are classified.
We first consider whether the LED blank assemblies should be classified in Heading 85.41 HTSUS as Lighting Emitting Diodes. Heading 8541, HTSUS, provides, in part, for "light-emitting diodes." However, the term "light-emitting diode" is not defined in the tariff. When a tariff term is not defined by the HTSUS or its legislative history, "the term’s correct meaning is its common meaning." Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult "dictionaries, scientific authorities, and other reliable information sources" and "lexicographic and other materials." C.J. Tower & Sons v. United States, 673 F.2d 1268, 1271 (CCPA 1982); Simod, 872 F.2d at 1576.
The Oxford English Dictionary defines the term "light-emitting diode" as "a semiconductor diode that emits light when a voltage is suitably applied." See www.oed.com. The McGraw-Hill Concise Encyclopedia of Science and Technology, (5th Ed., 2005 at 1252) defines an LED as "a rectifying semiconductor device which converts electrical energy into electromagnetic radiation." The website of the Lighting Research Center, a university-based research organization devoted to lighting, explains the process as follows:
LEDs are semiconductor diodes, electronic devices that permit current to flow in only one direction. The diode is formed by bringing two slightly different materials to from a PN junction. In a PN junction, the P side contains excess positive charge ("holes," indicating the absence of electrons) while the N side contains excess negative charges (i.e., electrons).
EN 85.41 (C) states that “light-emitting diodes or electroluminescent diodes,…are devices which convert electric energy into visible, infra-red or ultra-violet rays. They are used, e.g. for displaying or transmitting data in control systems.” However, EN 85.41 only refers to a "Light-emitting diode or electroluminescent diode" alone or by itself. There is no mention of the diode with any other components or within any housing or any device. In keeping with the common meaning of the term and the ENs, CBP has previously determined that the provision for LEDs in heading 8541, HTSUS, covers individual LEDs (i.e., the semiconductor diodes without other components). See, e.g., Headquarters Ruling (HQ) H011693, dated December 18, 2007; HQ H010636, dated December 3, 2006; and HQ H003215 dated October 10, 2007. To that effect, in HQ 966401 dated June 29, 2004, concerning the classification of a product known as the "Epoch light," a battery-operated LED floodlight, we indicated that EN 85.41 only refers to a "Light-emitting diode or electroluminescent diode" alone or by itself. There was no mention of the diode with any other components or within any housing or any device such as the Epoch light. Because the Epoch light was a complete battery-operated floodlight, which contains an LED, it was beyond the scope of heading 8541, HTSUS and classification under this heading was, therefore, precluded. Similar to the Epoch light, the instant imported LED blank assembly consists of more than just the LEDs because when they are imported, the PCBs are attached to the LEDs. As such, the device is beyond the scope of heading 8541, HTSUS, and cannot be classified in that heading as Light Emitting Diodes.
Accordingly in classifying the LED assembly blanks, we must consider the alternative proposed provision, subheading 8513.10.20, HTSUS which concerns flashlights. Flashlights have been defined in previous court decisions and Customs and Border Protection (CBP) Rulings as small battery-operated portable electric lights normally held in the hand by the housing itself, whose primary function is to project a beam of light. See Sanyo Electric Inc. v. United States, 496 F.Supp. 1311, aff’d., 642 F.2d 435 (1981). The primary function of a flashlight is to project a beam of light. See also HQ 968113 dated April 20, 2006. Since the devices in question project beams of light, are battery-operated and are held in the hand by their housing, we conclude that they should be considered as flashlights and be classified as such in subheading 8513.10.20, HTSUS. See HQ 964495 dated May 11, 2004.
We note that the LED blank assemblies are not complete flashlights under GRI 1, and thus we look to the remaining GRIs in classifying the LED assembly blanks. GRI 2(a) provides that any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or failing to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.
The provisions of this rule also apply to blanks unless these are specified in a particular heading. The term "blank" means an article, not ready for direct use, having the approximate shape or outline of the finished article or part, and which can only be used, other than in exceptional cases, for completion into the finished article or part (e.g., bottle preformed of plastics being intermediate products having tubular shape, with one closed end and one open end threaded to secure a screw type closure, the portion below the threaded end being intended to be expanded to a desired size and shape). Semi manufactures not
yet having the essential shape of the finished articles (such as is generally the case with bars, discs, tubes, etc.) are not regarded as "blanks". See HQ H082736, May 11, 2011.
Therefore, the issue to be decided is whether LED blank assemblies have the “essential character” of the completed or finished products and should, therefore, be classified pursuant to GRI 2(a) as if they were goods in their complete or finished state. In reviewing the LED blank assemblies, they are identifiable as having the essential character of the finished flashlights. They have the specific size and shape of the finished Special Ops Flashlight or the Sportsman Flashlight. Most significantly, the LED blank assemblies are advanced to the point where they are recognizable and dedicated for use as flashlights. When the LED blank assemblies are installed within their silicon housing (e.g. flashlight tops, bottom end caps, nose cones, looped caps and housing tubes, etc.) along with the magnet and Lithium batteries, the essential character remains that of a flashlight. Although the software on the LED blank assemblies can be reprogrammed after importation so that they can function as different devices, this does not alter the fact that at the time they are imported into the United States, they are electric power lights that are designed to be held in the hand and to project a beam of light. Thus, we find that the LED blank assemblies have the essential character of flashlights and are classified in subheading 8513.10.20, HTSUS as flashlights.
2) COUNTRY OF ORIGIN MARKING
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. § 1304), provides that unless excepted, every article of foreign origin imported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the United States, the English name of the country of origin of the article. Congressional intent in enacting 19 U.S.C. § 1304 was "that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will." United States v. Friedlander & Co., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940).
Part 134, U.S. Customs and Border Protection (CBP) Regulations (19 C.F.R. § 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. § 1304. Section 134.1(b), CBP Regulations (19 C.F.R. § 134.1(b)), defines “country of origin” as:
[T]he country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the “country of origin” within the meaning of [the marking regulations]…
A substantial transformation is said to have occurred when an article emerges from a manufacturing process with a name, character, or use that differs from the original material subjected to the process. M.B.I. Merchandise Industries, Inc. v. United States, 16 C.I.T. 495, 502 (1992) (citing United States v. Gibson-Thomsen Co., C.C.P.A. 267, 270 (C.A.D. 98) (1940)) The question of whether a substantial transformation occurs for marking purposes is a question of fact; to be determined on a case-by-case basis. National Hand Tool Corp. v. United States, 16 C.I.T. 308, 311 (1992) (quoting Uniroyal Inc. United States, 3 C.I.T. 220, 542 F. Supp. 1026 (1982), aff’d, 1 Fed.Cir. 21, 702 F.2d 1022 (1983)).
Assembly operations which are minimal or simple, as opposed to complex or meaningful will generally not result in a substantial transformation. In determining whether the United States processing constitutes a substantial transformation, the issue is the extent of operations performed and whether the parts lose their identity and become an integral part of the new article. Belcrest Linens v. United States, 573 F. Supp.1149 (CIT 1983), aff'd, 741 F.2d 1368 (Fed.
Cir. 1984). See also C.S.D. 85-25. If the manufacturing or combining process is merely a minor one which leaves the identity of the imported article intact, a substantial transformation has not occurred. See Uniroyal.
CBP considers the totality of the circumstances in determining whether an imported article loses it identity when it is combined with other articles in the United States. The country of origin of the item’s components, extent of the processing that occurs within a country, and whether such processing renders a product with a new name, character, and use are primary considerations in such cases. CBP takes into account such factors as resources expanded on product design and development, the extent and nature of post-assembly inspection and testing procedures, and degree of worker skill required during the actual manufacturing process. See HQ H107335 dated September 9, 2010; and HQ H006417 dated August 20, 2008. No single factor is determinative.
We conclude that the LED blank assemblies provide the essential character to the finished Special Ops and Sportsman flashlights. The LED blank assemblies are clearly the dominant component contained in the flashlights. When they are imported into the United States, the LEDs blank assemblies which are produced in India, incorporate the four light emitting diodes and a push–button switch that control the LEDs. Thus, they are capable of generating the four different light colors that are the defining characteristic of the flashlights. As such, they possess all the basic functions of the two finished flashlights. In our judgment, the assembly of the other components with LED blank assemblies to make the finished flashlights constitutes a simple assembly operation that involves a small number of components which does not appear to require a considerable amount of time, a high degree of skill or attention to detail. Although the LEDs require programming to allow them to function as flashlights rather than in some other capacity such as signaling, decorative or novelty devices, the programming operation is not sufficiently complex to change the identity or nature of the devices. After the software is loaded onto the LED blank assemblies, the devices still function to emit light. Therefore, we conclude that the LED blank assemblies imported from India are not substantially transformed as a result of the processing operations performed in the United States to make the two versions of the finished flashlights. Consequently, the country of the origin of the finished Special Ops and the Sportsman Flashlights under the country of origin marking law, 19 U.S.C. 1304, is the same as the country of origin of the imported LED blank assemblies, namely India.
HOLDING:
The LED blank assemblies are classified in subheading 8513.10.20, HTSUS which provides for “[P]ortable electric lamps designed to function by own source of energy (for example, dry batteries, storage batteries, magnetos), other than lighting equipment of heading 8512, parts thereof: lamps: flashlight.”
The country of origin of the Special Ops Flashlight, Sportsman Flashlight, and Light-Emitting Diodes (LED) blank assemblies under the country of origin marking law of 19 U.S.C. 1304 is India, and thus they should be marked accordingly.
A copy of this ruling letter should be attached to the entry documents filed at the time the merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officials handling the transaction.
Sincerely,
Ieva O’Rourke, Chief
Tariff Classification and Marking Branch