Modification of NY N022872, dated February 21, 2008; classification of solar powered lanterns from China

HQ H084499 May 28, 2010 CLA-2 OT:RR:CTF:TCM H084499 DSR CATEGORY: Classification TARIFF NO.: 8306.29.00 Mrs. Sandy Cooper, President Garden Meadow Inc. 124 Research Drive Bldg. G & H Milford, CT 06460 RE: Modification of NY N022872, dated February 21, 2008; classification of solar powered lanterns from China Dear Mrs. Cooper: This is in reference to New York Ruling Letter (NY) N022872, issued to you on February 21, 2008, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of solar powered lanterns from China. The ruling classified two solar powered lanterns – the “Solar Musical Belly Frog” and the “Solar Garden Vine Light.” The Solar Musical Belly Frog was classified in heading 8306, HTSUS, which provides for "…statuettes and other ornaments, of base metal; …” The Solar Garden Vine Light was classified in heading 9405, HTSUS, which provides for “Lamps and lighting fittings … not elsewhere specified or included; …” U.S. Customs and Border Protection (CBP) has reviewed the tariff classification of the Solar Garden Vine Light and has determined that the cited ruling is in error. Therefore, NY N022872 is modified for the reasons set forth in this ruling Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. § 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation was published on March 31, 2010, in the Customs Bulletin, Vol. 44, No. 14. No comments were received in response to the notice. FACTS: The subject article is described as follows in NY N022872: The Solar Garden Vine Light is a lantern in the shape of a cylinder measuring approximately 11 inches tall overall with an outside diameter of approximately 6 inches. It is constructed of base metal with a rustic finish. The top of the lantern features a cone-shaped cap with hanging ring and is supported to the base by three metal rods. The midsection of the lantern features a frosted translucent plastic [panel] making up 8 inches of the lantern with a diameter of 4 inches. Metal bands with leaves form a vine-like pattern around the top and bottom of the lens. In the base of the lantern is a removable hockey puck size disk with a light emitting diode (LED) lamp, two solar panels, printed circuit board, rechargeable battery, photocell and ON/OFF switch. The solar panels recharge the battery by day and [the LED] automatically light[s] up at night. Due to the small size of the hanging ring, the Solar Garden Vine Light is not designed to be carried in the hand or on the person. ISSUE: Whether the Solar Garden Vine Light is classified under heading 8306, HTSUS, as “statuettes and other ornaments, of base metal,” or under heading 9405, HTSUS, as “lamps or lighting fittings … not elsewhere specified of included.” LAW AND ANALYSIS: Proper analysis of classification of the subject lantern encompasses discussion of the following provisions: 8306 Bells, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal; … * * * Statuettes and other ornaments, and parts thereof: 8306.29.00 Other. * * * * 9405 Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; … * * * 9405.40 Other electric lamps and lighting fittings: * * * Of base metal: 9405.40.60 Other. * * * * Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). 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 GRI’s 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. 8980, 54 Fed. Reg. 35127 (August 23, 1989). Commencing with classification of the article, Note 1(k) to Section XV, HTSUS (which governs chapter 83, HTSUS), excludes articles of chapter 94 (and thus heading 9405, HTSUS). Therefore, we must first determine whether the subject article is a lamp, not elsewhere specified or included, of heading 9405, HTSUS. Heading 9405, HTSUS, refers to “lamps.” However, the term is not defined in the HTSUS or in the Explanatory Notes. A tariff term that is not defined in the HTSUS or in the ENs is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380, 382 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 134, 673 F.2d 1268, 1271 (1982). The Oxford English Dictionary defines “lamp” as a “vessel containing oil, which is burnt at a wick, for the purpose of illumination. Now also a vessel of glass or some similar material, enclosing the source of illumination, whether a candle, oil, gas-jet, or incandescent wire.” Moreover, CBP has consistently determined that classification of articles under headings 8513, HTSUS, and 9405, HTSUS, requires that the articles provide practical or usable light to the surrounding area, and not merely highlight the articles themselves. See HQ H011693 (December 18, 2007); HQ H017657 (December 12, 2007); HQ W968029 (April 12, 2007); NY N059592 (May 20, 2009); NY N053561 (March 24, 2009); NY N024027 (March 7, 2008); NY R01525 (February 28, 2005); NY 807513 (March 31, 1995). Note that there have been instances where CBP has determined that classification under heading 9405, HTSUS, was appropriate even where the emitted light was considered merely to be decorative. However, the articles in those cases were also not elsewhere specified or included, and thus aptly fell into the residual subheading for “other electric lamps and lighting fittings” of heading 9405, HTSUS. See HQ 966327 (May 28, 2003) (various decorative lighting accessories used in automobiles); HQ 962901 (September 28, 1999) (plastic Hanukkah-themed light set); NY F83270 (March 6, 2000) (plastic illuminated scarecrow); NY G81588 (September 18, 2000) (plastic illuminated ice cube). Here, the article was charged for forty-eight hours and then viewed in complete darkness. The article’s LED did not provide enough illumination to view the surrounding area but instead merely provided a soft glow that was visible through the article’s translucent panel and which served only to highlight the patterns on its surface, thus enhancing its decorative appeal. It was very difficult to discern objects that were even less then one foot away from the article. Thus, we find that the article does not provide a practical or usable light and is not a “lamp” as contemplated by heading 9405, HTSUS. With regard to the applicability of heading 8306, HTSUS, EN 83.06 states that the group “statuettes and other ornaments” comprises a wide range of “ornaments of base metal of a kind designed essentially for decoration, e.g., in homes, offices, assembly rooms, places of religious worship, and gardens,” and which have no utility value but are wholly ornamental. Here, as discussed, the article does not serve as a source of practical or usable light, and is merely meant to provide decorative mood lighting in gardens. Thus, it is now the position of CBP that the Solar Garden Vine Light in NY N022872 is classified in heading 8306, HTSUS, as “statuettes and other ornaments, of base metal.” HOLDING: By application of GRI 1, the subject article identified as the Solar Garden Vine Light is classifiable under heading 8306, HTSUS. Specifically, it is classifiable under subheading 8306.29.00, HTSUS, which provides for “… statuettes and other ornaments, of base metal …: Statuettes and other ornaments, and parts thereof: Other.” The column one, general rate of duty is “free.” Duty rates are provided for your convenience and 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. EFFECT ON OTHER RULINGS: NY N022872, dated February 21, 2008, is hereby modified. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division