CLA-2 OT:RR:CTF:TCM H024761 DSR
Mrs. Sandy Cooper, President
Garden Meadow Inc.
124 Research Drive
Bldg. G & H
Milford, CT 06460
RE: Revocation of NY N024029, dated March 6, 2008; classification of solar powered lanterns from China
Dear Mrs. Cooper:
This is in response to your letter, dated March 11, 2008, requesting reconsideration of New York Ruling Letter (NY) N024029, dated March 6, 2008, which pertains to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of solar powered lanterns from China. The ruling classified the articles 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 articles and has determined that the cited ruling is in error. Therefore, NY N024029 is revoked 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 articles are described as follows in NY N024029:
The submitted samples are constructed of base metal with a rustic finish and feature frosted translucent plastic [panels] on all four sides. Each lantern measures approximately 4½ inches square by 12 inches tall and feature four metal balls as legs. The Solar Etched Flower Lantern features a metal tulip on a stem with two leaves on all four sides. The Solar Etched Column Patio Light features metal screens with a scroll-like design on all four sides. In the base of each lantern is a removable disk measuring approximately 3 inches in diameter by 1 inch tall with a light emitting diode (LED) lamp, two solar panels, printed circuit board, rechargeable battery, ON/OFF switch and photocell. These lanterns are not designed to be carried in the hand or on the person. The lanterns’ batteries are charged by the solar panels during the day and [the LED’s] automatically light up at night for up to 8 hours.
ISSUE:
Whether the Solar Etched Flower Lantern and the Solar Etched Column Patio Light are classified as “statuettes and other ornaments, of base metal” of heading 8306, HTSUS, “portable electric lamps” of heading 8513, HTSUS, or “lamps or lighting fittings … not elsewhere specified of included” of heading 9405, HTSUS.
LAW AND ANALYSIS:
Proper analysis of classification of the subject lanterns 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.
* * * *
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:
* * *
8513.10.40 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. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
Commencing with classification of the articles, Notes 1(f) and 1(k) to Section XV, HTSUS (which governs chapter 83, HTSUS), exclude articles of section XVI, HTSUS (and thus heading 8513, HTSUS) and articles of chapter 94 (and thus heading 9405, HTSUS), respectively. Therefore, we must first determine whether the subject articles are portable electric lamps of heading 8513, HTSUS, or lamps and lighting fittings, not elsewhere specified or included, of heading 9405, HTSUS.
Both headings 8513, HTSUS, and 9405, HTSUS, refer 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 articles were charged for forty-eight hours and then viewed in complete darkness. The articles’ LED’s did not provide enough illumination to view the surrounding area but instead merely provided soft glows that were visible through the articles’ translucent panels, and which served only to highlight the patterns on their sides, thus enhancing their decorative appeal. It was very difficult to discern objects that were even less then one foot away from the articles. Thus, we find that the articles do not provide practical or usable light and are not “lamps” as contemplated by headings 8513, HTSUS, and 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 articles do not serve as sources of practical or usable light, and are merely meant to provide decorative mood lighting in gardens. Thus, it is now the position of CBP that the articles in NY 024029 are classified as “statuettes and other ornaments, of base metal” in heading 8306, HTSUS.
HOLDING:
By application of GRI 1, the articles identified as the “Solar Etched Flower Lantern” and the “Solar Etched Column Patio Light” are classifiable under heading 8306, HTSUS. Specifically, they are 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 N024029, dated March 6, 2008, is hereby revoked.
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