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HQ 089963


November 21, 1991

CLA-2 CO:R:C:M 089963 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.99.40

Mr. Brian Pullen
SRB Technologies, Inc.
P.O. Box 25267
Winston-Salem, N.C. 27114-5267

RE: Betalight; heading 9405; parts of illuminated signs; Explanatory Note 94.05

Dear Mr. Pullen:

This is in response to your letters of June 5, 1991 and July 18, 1991, requesting a tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for beta- light. Descriptive literature was submitted for our review.

FACTS:

Betalight consists of a sealed glass tube internally coated with phosphor and filled with the radioactive gas tritium, which activates the phosphor to produce light. Sizes of the betalight vary, ranging from a tube measuring .76mm in diameter and 6.00mm in length to a tube measuring 200mm in length and to a disc measuring 22.5mm diameter. This item is used in the manufacture of emergency exit signs and in various other lighting applications as a non electrical form of illumination.

ISSUE:

What is the tariff classification of the betalight.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the heading and any relative section or chapter notes.

Heading 9405, HTSUSA, provides for lamps and light 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. Subheading 9405.99, HTSUSA, provides for parts of items described in the above heading.

The Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes, although not dispositive, are to be looked to for the proper interpretation of the HTS. Explanatory Note II to 94.05 of the HCDCS, page 1581, states the following:

PARTS

The heading also covers identifiable parts of lamps and light fittings, illuminated signs, illuminated name-plates and the like, not more specifically covered elsewhere.

Though betalight is used as the part which is the light source for various products, indications are that the betalight is used principally in illuminated emergency exit signs and similar products. Thus, the betalight would be considered a part of illuminated signs and it would be classified in heading 9405, HTSUSA.

The next question to be determined is in what subheading the betalight would be classified. GRI 6 provides 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, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. GRI 6 thus incorporates GRIs 1 through 5 in classifying goods at the subheading level.

The betalight consists of a glass tube and, therefore, it could be classified in subheading 9405.91, HTSUSA, which provides for lamps and light fittings...illuminated signs, illuminated name-plates and the like..., parts, of glass. As the betalight is also composed of 2 other products, phosphor and tritium, it could be classified in subheading 9504.99, HTSUSA, which provides for lamps and light fittings...illuminated signs, illuminated name-plates and the like..., parts, other. However, neither of these subheadings completely describe the betalight. Thus, the betalight does not fit the terms of the above subheadings, pursuant to GRI 1.

When goods are prima facie classifiable under two or more headings GRI 3 is applicable. In this case, classification is determined by application of GRI 3(b) which provides that:

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives then their essential character, insofar as this criterion is applicable.

Explanatory Note (VIII) to GRI 3(b), page 4, states that:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of goods.

In the instant case, the glass tube is a holder for the phosphur and tritium and it weighs more than the other components. However, without the tritium, the phosphor would not be activated and the tube would not light up. The tritium is the constituent material which plays the most important role in relation to the use of the instant good and it, therefore, imparts the essential character of the betalight for purposes of classifying the betalight in a subheading. The betalight would be classified in subheading 9405.99.40, HTSUSA.

HOLDING:

The betalight is classified in subheading 9405.99.40, HTSUSA, which provides for provides for lamps and light fittings...illuminated signs, illuminated name-plates and the like..., parts, other, other. The rate of duty is 7.6 percent ad valorem.

Sincerely,

John Durant, Director

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