CLA-2 RR:TC:MM 959086 JAS
Gary L. Bohlke, Esq.
Semmes, Bowen & Semmes, P.C.
250 West Pratt Street
Baltimore, MD 20201
RE: NY 816958 Affirmed; Travel Gear Plug-In Rechargeable Light;
Hand-Held Illumination Device That Plugs Into Car's Cigarette
Lighter; Heading 8512, Electrical Lighting or Signaling
Equipment for Motor Vehicles Flashlight; HQ 084852,
HQ 955160, NY 860561, NY 891968; 642 F.2d 435
Dear Mr. Bohlke:
In a letter, dated March 25, 1996, on behalf of Eveready
Battery Company, Inc., you ask that we reconsider a
classification ruling issued to your client on a plug-in
rechargeable light produced in China. A sample was submitted.
FACTS:
In NY 816958, dated January 24, 1995, the Director, National
Commodity Specialist Division, New York, determined that the
Travel Gear model EM290 rechargeable light was classifiable as a
portable electric lamp, flashlight, in subheading 8513.10.20,
Harmonized Tariff Schedule of the United States (HTSUS). The
EM290 is a push-button plastic illuminating device designed to
project a beam of light. It measures approximately 4 1/4 inches
long and is designed to be held in the hand. The EM290 is
battery-operated and can be recharged by plugging one end into
the cigarette lighter socket of an automobile or truck.
In its ruling request, Eveready advocated classification in
subheading 8512.20.20, HTSUS, a duty-free provision for other
lighting or visual signaling equipment, lighting equipment, of a
kind used for motor vehicles. Customs rejected that
classification on the basis that the device is a flashlight and,
therefore, not of a kind used on motor vehicles. You now - 2 -
maintain that the light is designed solely for use with a motor
vehicle and derives its source of energy, i.e., can be charged
and recharged, solely from a motor vehicle. You cite several
administrative rulings to substantiate the heading 8512
classification.
The provisions under consideration are as follows:
8512 Electrical lighting or signaling
equipment...of a kind used for...motor vehicles; parts thereof:
8512.20 Other lighting or visual signaling equipment:
8512.20.20 Lighting equipment...Free
* * * *
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...20 percent ad valorem
8513.10.40 Other...5.5 percent ad valorem
ISSUE:
Whether the model EM290 rechargeable light is lighting
equipment of heading 8512; if not, whether it is a flashlight of
heading 8513.
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). GRI 1 states in part
that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes and, provided the headings or notes do not
require otherwise, according to GRIs 2 through 6. GRI 6 states - 3 -
in part that for legal purposes, the classification of goods in
the subheadings of a heading shall be determined according to the
terms of those subheadings and any related subheading notes and,
by appropriate substitution of terms, to GRIs 1 through 5, on the
understanding that only subheadings at the same level are
comparable.
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg.
35127, 35128 (Aug. 23, 1989).
By the terms of the respective headings, if the model EM290
is lighting equipment of heading 8512 it cannot be a portable
electric lamp or flashlight of heading 8512. In this regard, the
ENs at p. 1349 state, in relevant part, that heading 85.12 covers
electrical apparatus and appliances specialized for use on motor
vehicles for lighting or signaling purposes. The following are
listed at p. 1350 among the electrical lighting apparatus
included in heading 85.12:
(3) Headlamps of all kinds including lamps fitted
with dimming or dipping attachments; diffused
driving lamps; anti-fog lamps; spot-lights;
search lamps of a kind used on police cars or
the like (including those which, attached to a
length of cable, can be used as hand lamps or
can be placed on the road).
(4) Side lamps; tail lamps; parking lamps; license
plate lamps.
(5) Braking lights, direction indication lights,
reversing lamps, and the like (Emphasis original).
These lamps and lights are specialized for use on or incorporated
into motor vehicles. The EM290 does not meet this criterion. It
is electrical lighting apparatus designed to be used
independently of a motor vehicle. The fact it may be
rechargeable by means of a vehicle's cigarette lighter is not
legally relevant. For example, while the search lamps for police - 4 -
cars listed in (3), above, can be used as hand lamps or placed on
the road, they are attached to the vehicle by cable and
presumably, can operate only in that mode.
The rulings which you cite are factually distinguishable and
do not, in our opinion, support the heading 8512 classification
for the EM290. HQ 955160, dated April 1, 1994, concerns a
combination spotlight and amber flasher, used alternately, with
magnetic base and self-contained electrical cord designed to be
inserted into a motor vehicle's cigarette lighter. The sample
submitted with the ruling request has no battery nor any means of
accommodating one. The spotlight/flasher, therefore, is not
capable of independent use and can only be used when inserted
into the cigarette lighter. NY 891968, dated November 5, 1993,
reached the same conclusion with respect to an identical device,
the "Two-in-One Roadside Light." NY 860561, dated March 5, 1991,
concerns a 12-volt, 8-watt fluorescent work light said to be
principally used with motor vehicles. It has a 15-foot cord with
cigarette and battery clip (otherwise undescribed), a plastic
hook, and plastic upright support stand. The work light is said
to operate by plugging into the motor vehicle's cigarette
lighter, which we interpret as being its only means of operation.
The devices in these rulings are akin to the search lamps listed
under (3) in the cited 85.12 ENs which are attached to the
vehicle by means of a cable. This eliminates heading 8512 from
consideration.
Regarding heading 8513, under GRI 3(a), HTSUS, applied at
the subheading level through GRI 6, the provision for portable
electric lamps, flashlights, if it applies, would be more
specific than the provision for other portable electric lamps.
See HQ 084852, dated March 28, 1990. The term flashlight has
been judicially determined to encompass small, battery-operated,
portable electric lights. Sanyo Electric Inc. v. United States,
496 F.Supp. 1311, aff'd. 642 F.2d 435 (1981). Instructions on
the reverse of the blister pack in which the sample is packaged
bear numerous references to "flashlight." We conclude that the
EM290 rechargeable light is a flashlight for tariff purposes.
- 5 -
HOLDING:
Under the authority of GRI 3(a), applied at the subheading
level by GRI 6, the Travel Gear model EM290 plug-in rechargeable
light is provided for in heading 8513. It is classifiable in
subheading 8513.10.20, HTSUS. NY 816958, dated January 24, 1995,
is affirmed.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division