HQ 0086720 - Decision on Application for Further Review of Protest No. 0401-8-000185 of March 15, 1988. Wall; lamps; tsus; portable - United States International Trade Commision Rulings

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HQ 086720

July 30, 1990

CLA-2 CO:R:C:G 086720 NLP

CATEGORY: CLASSIFICATION

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

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