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HQ 088993


July 29, 1991

CLA-2 CO:R:C:M 088993 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 8513.10.40

District Director of Customs
U.S. Customs Service
One World Trade Center
Long Beach, CA 90831

RE: Protest No. 2704-90-001657; portable electric lamps; subheading 8513.10.40; subheading 9405.20.80

Dear District Director:

The following is our decision regarding the Protest and Request for Further Review No. 2704-90-001657 dated April 18, 1990. At issue is the classification of portable electric lamps.

FACTS:

The merchandise which is the subject of this protest, article 41-0017, is a battery operated filament lamp in a plastic housing which is translucent at the top and solid on the lower end. The lamp is round and measures approximately 3-1/2 inches in diameter and 6-1/2 inches in length. There is a metal hook on the end opposite the filament bulb so that the article may be hung in a tent, on a ceiling, in a closet, or against the wall. It has a flat base to enable the article to be placed on a flat surface such as table.

Your office liquidated the lamp under subheading 8513.10.40, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for 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, lamps, other.

The importer contends that the instant article is classified under subheading 9405.20.80, HTSUSA, which provides for lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included, electric table, desk bedside or floor standing lamps, other. The importer argues that the diameter of the article makes hand carrying during use impractical. In addition, the translucent covering over the filament bulb disperses the light, making it unfit to throw a focused beam of light and unfit for use as a flashlight or lantern. Rather, the item is designed for use when stationary. Therefore, the importer argues that based on the Explanatory Notes to Heading 8513, HTSUSA, the instant article is not portable since it is not designed for use when carried in the hand or on the person and, as a result, it is precluded from classification in Heading 8513, HTSUSA.

ISSUE:

Is the instant lamp classifiable in subheading 8513.10.40, HTSUSA, or in subheading 9405.20.80, HTSUSA.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

Heading 8513 provides for portable electric lamps designed to function by their own source of energy (for example, dry batteries, accumulators, magnetos). The Explanatory Notes for the HTS, although not dispositive, are to be looked to for guidance in interpreting the HTS. The Explanatory Notes for Heading 8513, HTSUSA, provide that this heading covers portable electric lamps designed to function by means of a self-contained source of electricity, for example dry cell, accumulator. The ENs state further:

They comprise two elements (i.e., the lamp proper and the source of electricity) which are usually mounted and directly connected together, often in a single case. In some types, however, these elements are separate and are connected by wires.

The term "portable lamps" refers only to those lamps (i.e. both the lamp and its electricity supply) which are designed for use when carried in the hand or on the person. They usually have a handle or a fastening device and may be recognized by their particular shapes and their light weight.

The lamps of this heading include:

(2) other hand lamps (including those with an adjustable beam). Hand lamps are often fitted with a simple device for hanging them temporarily on a wall, etc., while others are designed so that they can be placed on the ground.

The instant article is a compact portable lamp that is light weight and contains a self-generating power source. It has a utility hook, which permits the lamp to function in various places. It is our position that this type of lamp, a light weight battery operated lamp that can be carried in the hand and is designed to be temporarily placed in stationary positions is properly classified in Heading 8513, HTSUSA.

HOLDING:

The instant lamp is classifiable in subheading 8513.10.40, HTSUSA, which provides for 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, lamps, other.

The protest should be denied in full. A copy of this decision should be attached to the Customs Form 19 Notice of Action to be sent to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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