CBP Ruling H074137

HQ H074137 June 14, 2012 CLA-2 OT:RR:CTF:TCM H074137 DSR CATEGORY: Classification TARIFF NO.: 8513.10.20 Pam Reeder, Attorney in Fact Evans and Wood & Co., Inc., Attorney in Fact Vice President, Imports 900 Town and Country Suite 150 Houston, TX 77024 RE: Reconsideration of NY N056991, dated April 24, 2009; classification of two power failure lights produced in China Dear Mrs. Reeder: This is in response to your letter, dated August 17, 2009, requesting reconsideration of New York Ruling Letter (NY) N056991, dated April 24, 2009. NY N056991 pertains to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of two power failure lights produced in China. The devices are identified as "Item 11096, Rechargeable Power Failure Night-light," and "Item 11281, LED Rechargeable Night-light." The ruling classified both devices in subheading 8513.10.20, HTSUS, which provides for "Portable electric lamps designed to function by their own source of energy (for example, dry batteries, storage batteries, magnetos)...: Lamps: Flashlights." You assert that the devices are instead classifiable in subheading 9405.40.80, HTSUS, as "Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; ...: Other electric lamps and lighting fittings: Other." FACTS: The subject articles are described as follows in NY N056991: The Rechargeable Power Failure Night-light, Item 11096, is a small plastic handheld device that measures approximately 43/4 inches long by 11/2 inches in diameter at its widest points. It is cylindrical in shape, is designed to fit comfortably in the hand, and is powered by an internal rechargeable battery. A retractable two-prong plug recessed in the housing pivots outward so that the light can be plugged into a standard 120 volt (V) power receptacle in order to recharge. Embedded in the housing also are a photocell, an LED power indicator, and a three-position slide switch with settings for "auto", "off", and "on." One end of the light features 3 LED (light emitting diode) bulbs and a reflector under a clear lens, and functions as a flashlight. The opposite end provides a single LED bulb under an additional clear lens cover; when the unit is plugged in and the selector switch is set to "auto", this aspect functions as a photosensitive nightlight that provides light to the immediate area. The "auto" setting will also activate the flashlight when it is unplugged from power. The "on" setting will activate just the flashlight when the light is either plugged in or carried in the hand. The LED Rechargeable Night-light, Item 11281, is a small plastic handheld device that you state measures approximately 4 inches high by 23/4 inches wide by 3/4 inches in diameter at its widest points. It is oblong in shape, is designed to fit comfortably in the hand, and is powered by an internal rechargeable battery. At one end of the light are two LED bulbs under a clear lens. On one side of the housing, a retractable 2-prong plug allows the light to be plugged into a standard 120V power receptacle in order to recharge. When plugged in, a photocell embedded in the unit turns the light on automatically when it is dark, providing light to the immediate area. On the side of the housing opposite the plug, a push-button on-off switch controls the flashlight only when carried in the hand. ISSUE: Whether the Rechargeable Power Failure Night-light and the LED Rechargeable Night-light are classified in (1) subheading 8513.10.20, HTSUS, as flashlights; (2) subheading 8513.10.40, HTSUS, as an "other" portable electric lamp; or (3) subheading 9405.40.80, HTSUS, as "other" electric lamps and lighting fittings. LAW AND ANALYSIS: 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. In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or 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 in this case 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 8513.10.40 Other. * * * * 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. * * * * We first note that Note 1(f) to Chapter 94, HTS, excludes lamps or lighting fittings of Chapter 85, HTS, from Chapter 94, HTS. Furthermore, EN 94.05 specifically excludes portable lamps of heading 8513, HTSUS. Thus, we begin our analysis with the potential applicability of heading 8513, HTSUS. EN 85.13, HTS, refers to "portable lamps" as lamps that are designed for use when carried in the hand or on the person, or are designed to be attached to a portable article or object. They typically possess a handle, or a fastening device, and may be recognized by their particular shapes and light weight. Also, in a number of rulings, CBP has applied the definition of the term "flashlight" set forth in Sanyo Electric Inc. v. United States, 496 F.Supp. 1311, 1315, 84 Cust. Ct. 167, 173 (1980) (a flashlight is a "small, battery-operated portable electric light."). CBP has also added to that definition by noting that a flashlight is normally held in the hand by the housing, and its primary function is to project a beam of light. See, e.g., HQ 967480, dated June 2, 2005; HQ 964495, dated February 12, 2001; HQ 952559, dated March 3, 1993; HQ 951855, dated July 24, 1992; and HQ 084852, dated March 28, 1990. Here, erethe Rechargeable Power Failure Night-light and the LED Rechargeable Night-light are battery-powered and are of sizes and shapes such that they can easily be held in hand by their housings. When the Rechargeable Power Failure Night-light is not plugged into an AC outlet and the selector switch is set to "auto," or when the selector switch is set to "on," whether plugged in or carried by hand, the end of the device housing the three LEDs and reflector projects light functions as a flashlight. The LED Rechargeable Night-light possesses a push-button on/off switch that controls its flashlight function when carried by hand. Thus, they meet the criterion required for classification as flashlights. Our analysis does not end at this point because the subject devices possess additional functions that complement their functions as flashlights. For instance, when the Rechargeable Power Failure Night-light is plugged in and its selector switch is set to "auto", a photosensitive nightlight on the end opposite its flashlight configuration casts an area light whenever the immediate area becomes dark. In addition, when the LED Rechargeable Night-light is plugged into an electrical outlet, a photocell embedded in the unit automatically turns on the LED cells at its end to cast an area light. Note 3 to Section XVI, HTSUS, reads in pertinent part as follows: 3. Unless the context otherwise requires . . . other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function. The ENs to Section XVI further state, in pertinent part: (VI) MULTI FUNCTION MACHINES AND COMPOSITE MACHINES (Section Note 3) In general, multi-function machines are classified according to the principal function of the machine. Multi-function machines are, for example, machine-tools for working metal using interchangeable tools, which enable them to carry out different machining operations (e.g., milling, boring, lapping). Where it is not possible to determine the principal function, and where, as provided in Note 3 to the Section, the context does not otherwise require, it is necessary to apply General Interpretative Rule 3 (c).... The instant devices are multi-function machines because they can function both as flashlights and as area night-lights. The question remains as to whether the principal function of the devices is to operate in the manner of flashlights within subheading 8513.10.20, HTSUS, or in the manner of other portable lamps within subheading 8513.10.40. At this point, consideration of heading 9405 is still precluded by virtue of Note 1(f) to Chapter 94, HTS. You claim that the flashlight component does not impart the principal function of the devices because, according to statistical analysis that shows the relatively low frequency and duration of sustained power outages in the Houston metropolitan area, the devices will typically be employed as nightlights that provide low ambient light to the immediate areas surrounding the devices themselves, as opposed to flashlights that are used during power outages. We find that argument unconvincing, as it presupposes that the devices are only useful when acting passively in darkened areas as night-lights and that the devices' flashlight functions are useful only during power outages. The devices are readily available year round for use as flashlights (whether during power outages or not) in environments in which the ambient levels of light are low, i.e., in a confined space during the day that does not contain a light source, or in a space where light in addition to any ambient or existing light is needed. They possess the additional feature of being able to also function as night-lights during power outages, but the availability of additional features does not, by itself, alter the principal function of a device. In any event, most electrical sockets in homes and offices are situated at ankle or calf level. It is reasonable to conclude that one would, in the event of a power outage, most likely remove the devices from their low wall sockets and carry them by hand - employing their flashlight functionality in order to maneuver through the darkened area. CBP has classified similar multifunction devices as flashlights of subheading 8513.10.20, HTSUS, based upon their principal, or primary, functions as flashlight. For example, in NY N069383, dated July 31, 2009, we considered the Mini Eco-i-Lite. It is a small, cylindrical, handheld device constructed of plastic and powered by an internal lithium-ion rechargeable battery. One end of the Mini Eco-i-Lite features three LEDs under a clear plastic lens. The opposite end of the device features a dome-shaped translucent amber lens over a single LED, which provides a nightlight feature. The charging base consists of a plug-in, donut-shaped housing designed to hold the flashlight for charging by induction. With the flashlight in the charging base and the switch in the "on" mode, the light sensor will turn on the nightlight when a room darkens. With the switch in the "auto" mode, the flashlight will turn on automatically in the event of a power failure allowing the user to easily locate it for use in an emergency. Additionally, the device may be removed from the charging base and used at any time. NY N064257 involved the Power Failure Light, which is a battery powered rechargeable power failure light, flashlight and nightlight that measures approximately 41/2 inches in height, 2 inches in width, with a depth of 1/2 inch. It is constructed of a plastic housing with non-slip strips on both sides and features three bright white LEDs beneath a clear lens on one end of the housing with a single on/off push-button. On the opposite end of the housing is a single LED and photo-sensor under a clear plastic lens. On the back of the light is a built-in two-prong plug, which folds into the housing when not in use. When plugged into a standard wall outlet, the Power Failure Light functions as a night light, illuminating the single LED automatically at dusk. In the event of a power failure or when removed from the outlet, the three LEDs automatically illuminate, and the light functions as an emergency flashlight for up to 7 hours under a full charge. Finally, NY N019777, dated November 27, 2007, involved three battery-operated "portable dual-light sticks." Each device was easily carried in the hand and projected directional light from their ends. Two of the devices incorporated nightlights in addition to their flashlight functions, while the other operated only as a flashlight that could be activated either by a switch or by motion. Thus, we find that the principal function of the subject devices is that of hand-held, battery-powered, portable sources of light, i.e., flashlights. The articles are eo nomine classifiable within heading 8513; therefore, classification within heading 9405 is precluded. You alternatively claim that should CBP determine that the nightlight features of the devices do not impart the essential characters of the devices, then it must be concluded that under a GRI 3(c) analysis, neither the nightlight nor the flashlight features impart the essential character of the devices, and the devices should thus be classified in the later descriptive subheading, in this case, 8513.10.40, HTSUS. However, GRI 3 can only be used when goods are prima facie classifiable under two or more subheadings. That is not the case here. The "other" provision, subheading 8513.10.40, HTSUS, does not cover the nightlight function of the devices. Instead, that provision refers to portable lamps that do not possess the functionality of a flashlight, and that are of a size and shape other than a flashlight. Because the device in question is described by the term at all times, it cannot simultaneously be considered something "other than a flashlight," and GRI 3 is not reached. Only the text of subheading 8513.10.20, HTSUS, describes this article, and the merchandise is classifiable at GRI 6 in the eo nomine provision for flashlights in that subheading. HOLDING: By application of GRIs 1 and 6, and Section XVI Note 3, the subject Nightstick Task Light" (Model NSR-2492) is classified in 8513 HTSUS and specifically in subheading 8513.10.20, HTSUS as "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." The 2012 column one general rate of duty is 12.5% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided at www.usitc.gov/tata/hts. EFFECT ON OTHER RULINGS: NY N056991, dated April 24, 2009, is hereby affirmed. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division 6