CLA-2 CO:R:C:G 086720 NLP
TARIFF NO: 653.37
District Director of Customs
Northeast Region
10 Causeway Street
Boston, MA 02222
RE: Decision on Application for Further Review of Protest No.
0401-8-000185 of March 15, 1988. Wall; lamps; tsus; portable
Dear Director:
Protest No. 0401-8-000185 was filed against your decision to
classify certain wall lamps under the provision for other
illuminating articles, of brass, item 653.37, Tariff Schedules of
the United States Annotated (TSUSA).
FACTS:
The article at issue is a brass wall lamp imported by Dana
Imports Inc. from Taiwan. The wall lamp consists of a shade and
a fixture having a swing arm permanently attached to a bracket
from which the lamp is affixed to the wall.
The wall lamps were classified and liquidated under the
provision of item 653.37, TSUSA, which provides for other
illuminating articles, of brass. The protestants contend the
wall lamps are portable and therefore are classifiable in item
653.35, TSUSA, which provides for illuminating articles and
parts thereof, other portable lamps for indoor illumination, of
brass.
ISSUE:
Whether the wall lamps are classifiable in item 653.37,
TSUSA, or in item 653.35, TSUSA.
LAW AND ANALYSIS:
The protestants state in their papers that according to the
Underwriters Laboratories (UL's) the instant lamps are portable
because the lamps are plug in items and that the lamps can be
assembled without tools. The UL's criteria are over inclusive
and are not dispositive for the classification of items under the
TSUSA. Moreover, the protestant claims that even though a
screwdriver is used to mount the wall bracket to a wall, the
second criteria of the UL's test is not negated because the wall
mount is considered a separate item apart from the lamp and does
not contribute to the working of the lamp. It is our position
that the wall bracket does contribute to the workings of the
lamp. The instant lamp is designed to be affixed to the wall and
without screwing the lamp onto the wall through the wall bracket,
the lamp would not serve its function. Therefore, tools are
required to put the lamp together and the lamp, therefore, does
not meet one of the UL's requirements for portability.
HQ 042178, dated February 3, 1976, dealt with the scope of
the term "portable" in relation to a lamp with wire handles and
small notches that was designed to be hung on the wall on a
temporary basis. HQ 042178 stated the following, "Our position
is that an article of this type is non-portable only when it is
fixed permanently, rather than temporarily, to anything
stationary."
In addition, ORR 572-68, in deciding that a coffee maker
was not portable stated that "although the device is light
enough to be picked up manually, its design indicates to us that
once it is placed down, it will not be moved around as a matter
of routine."
In the instant case, the wall lamps will be held to the wall
by screws, will be kept where placed and will not be moved around
as a matter of routine. The wall lamps are designed for
permanent installation and are not portable. Therefore, the wall
lamps are classifiable in item 653.37, TSUSA.
HOLDING:
The wall lamps are classifiable as other illuminating
articles, of brass in item 653.37, TSUSA.
The protest should be denied in full. A copy of this
decision should be attached to the Form 19 to be returned to the
protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division