CLA-2 RR:CR:GC 965248 KBR

Mr. Myron Paul Barlow
Katten Muchin Zavis
1025 Thomas Jefferson Street, NW
Washington, D.C. 20007-5201

RE: Reconsideration of NY G80198; AquaScape Bubble Light

Dear Mr. Barlow:

This is in reference to your letter on behalf of Homedics, Inc., dated September 10, 2001, requesting reconsideration of New York Ruling Letter (NY) G80198, issued to you by the Customs National Commodity Specialist Division, New York, dated August 15, 2000, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of the AquaScape Illuminated Relaxation Bubble Light. A sample was submitted. In preparing this ruling consideration was given to arguments you presented in a teleconference with members of my staff on July 23, 2002.

FACTS:

The article under consideration is the AquaScape Illuminated Relaxation Bubble Light, Model BLTW-100. The light consists of a clear plastic tube about 2 feet long, mounted on a plastic base. The base contains a 120 volt/10 watt halogen light bulb that shines through a rotating transparent color wheel. The base also holds an air pump that forces air through a bubbling stone set in the base of the plastic tube. Water is placed in the clear plastic tube. The light shines through the color wheel into the plastic tube, water and bubbles.

Your letter discusses eight other model numbers that you believe are identical for tariff purposes. However, you state that you believe the NY Ruling only concerned Model BLTW-100. The description of the article in NY G80198 is that of a 4 foot tall article with a 20 watt light bulb. However, the sample submitted and discussed in your letter is only approximately 2 feet high with a 10 watt bulb. We believe the article in NY G80198 and the sample submitted, Model BLTW-100, are equivalent for tariff classification purposes.

ISSUE:

What is the classification for AquaScape Illuminated Relaxation Bubble Light?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, 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.

In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:

Other machines and apparatus:

8543.89 Other:

Other:

Other:

8543.89.96 Other

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

NY G80198 found that the AquaScape was classifiable as other electric lamps and lighting fittings, other, under subheading 9405.40.80, HTSUS. You argue in your letter that the AquaScape should be classified as electric machines and apparatus, other, under subheading 8543.89.96, HTSUS. You base this on court cases decided under the predecessor to the HTSUS, the Tariff Schedule of the United States (TSUS). In each of the court cases you cite, Ross Products, Inc. v. United States, 433 F.2d 804 (C.C.P.A. 1970); New York Merchandise Co., Inc. v. United States, 1 C.I.T. 200 (1981); and L. Batlin & Son, Inc. v. United States, 345 F. Supp. 996 (Cust. Ct. 1972) aff’d 487 F.2d 916 (C.C.P.A. 1973); the decisions were based on the articles not meeting the TSUS term of being an “illuminating article”. The courts determined that to be an “illuminating article” the article must produce enough light to light up something other than itself, such as to be used for activities such as reading or even as a nightlight. You argue that the low watt bulb used in the AquaScape only produces enough light to illuminate the article itself as a decorative effect, but not provide enough light for any other purpose. You believe the article should be classified as an electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter, other, under subheading 8543.89.96, HTSUS.

The AquaScape is being imported under the HTSUS; not under the TSUS. 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).

“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”. We find that the AquaScape falls within these definitions of “lamp”. Further, the packaging and instructions describe the AquaScape as a “light”. “Light” is defined in The Random House College Dictionary at 774 as “an illuminating agent or source as the sun, a lamp, or a beacon.”

Under the language of the HTSUS, Customs has determined that articles which light up but are of a decorative nature, rather than being used to provide usable light for illuminating an area, are provided for under heading 9405, HTSUS. One particular type of article of this nature specifically provided for eo nomine in this heading is light sets of a kind used for Christmas trees (subheading 9405.30.00, HTSUS). Light sets which are not intended for Christmas trees also fall within this heading, under subheading 9504.40.80, HTSUS. See HQ 962901 (September 28, 1999), citing Primal Lite, Inc. v. United States, 15 F. Supp. 2d 915 (Ct. Int’l Trade 1998); aff’d 182 F.3d 1362 (CAFC 1999). Customs found that an electric light “not intended primarily for illumination but for decoration” was classified as other electric lamps and lighting fittings, other, under subheading 9405.40.80, HTSUS. NY F8370 (March 6, 2000), see also NY G81588 (September 18, 2000) (an illuminated ice cube is classified under subheading 9405.40.80, HTSUS).

In NY G83437 (November 9, 2000), Customs used both subheadings under consideration in the instant situation, 8543.89.96, HTSUS, and 9504.40.80, HTSUS. For articles with an interior light situated behind moving plastic sheets which would visibly display designs against a screen, simulating movement as in an aquarium, Customs found that the articles were classified under subheading 8543.89.96, HTSUS. However, for other articles, one with an interior light with rotating sides that projected designs on the wall, another article which was an illuminated bubble light similar to the instant AquaScape, and a third article in the shape of a rocket with an interior bulb that illuminates the body of the rocket, Customs found these to be classified under subheading 9405.40.80, HTSUS.

For the specific type of article involved here, illuminated bubble lights, Customs has consistently ruled that they are classified as other electric lamps and lighting fittings, other, under subheading 9405.40.80, HTSUS. NY G89961 (April 30, 2001), NY H82172 (June 29, 2001), NY G85942 (January 22, 2001).

You cite two rulings, NY D89576 (April 5, 1999) and NY D89578 (April 5, 1999) in support of classification under subheading 8543.89.96, HTSUS. However, both of those decisions involved articles which had a string of light emitting diodes (LEDs) attached to them. We do not find this to be similar to the AquaScape. The AquaScape is illuminated by a 10 watt light bulb, not an LED. The packaging and instructions describe the AquaScape as a “light”. The light bulb illuminates the entire length of the plastic tube of the AquaScape. The bulb generates enough illumination that it could act as a night light.

GRI 3(a) states that when goods are classifiable under two or more headings the “heading which provides the most specific description shall be preferred to headings providing a more general description.” The ENs for GRI 3(a) state that a “description by name is more specific than a description by class” and “[i]f the goods answer to a description which more clearly identifies them, that description is more specific than one where identification is less complete.” In this case, the AquaScape is more clearly and specifically described by heading 9405, HTSUS, as lamps and lighting fittings, than by the basket heading 8543, HTSUS, as electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter. Pursuant to GRI 3(a), the AquaScape illuminated relaxation bubble light is classifiable under subheading 9405.40.80, HTSUS, providing for other electric lamps and lighting fittings, other.

HOLDING:

In accordance with the above analysis, the AquaScape illuminated relaxation bubble light is classifiable under subheading 9405.40.80, HTSUS, providing for other electric lamps and lighting fittings, other. .

NY G80198 is affirmed.


Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division