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HQ 952797


January 25, 1993

CLA-2 CO:R:C:M 952797 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 8527.19.00

District Director of Customs
909 First Avenue
Rm 2039
Seattle, WA 98174

RE: Protest No. 3001-92-100658; AM/FM Radio/Flashlight; Clock; Siren; GRI 3(c); 8513.10.20; 8527.19.00; HQ 087161; HQ 952494; HQ 952669; HQ 089877; HQ 087161; NY 851307; NY 833371; NY 854079; NY 854363

Dear District Director:

The following is our decision regarding the Protest and Request for Further Review No. 3001-92-100658, dated August 10, 1992. The protest was filed against your liquidation of the entry of certain merchandise which was classified in subheading 8513.10.20, Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise, Roadmaster Model No. FL-09-WAL, is a small portable battery operated combination AM/FM radio clock/ flashlight with a siren. According to the literature which was provided, the merchandise is in a long tubular plastic housing which measures approximately 2 7/8 inches in length by 10 1/2 inches in height and has a diameter of 2 1/16 inches. The combination article contains an AM/FM radio, frequency tuner, a speaker and sound amplifier, a clear lens, a filament bulb with a reflector and socket, as well as a siren feature. The merchandise also contains a liquid crystal display (LCD) clock which displays month, date, and time.

ISSUE:

What is the proper classification of the combination AM/FM radio clock/flashlight with a siren feature under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS 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 headings and any relative section or chapter notes.

As stated above, the merchandise is a combination radio clock and flashlight with a siren function. After examining the merchandise, we are of the opinion that the siren is a secondary function of the device and does not warrant equal consideration in comparison to the flashlight and the radio clock in determining its essential character. Therefore, the merchandise is prima facie classifiable under two headings. It is classifiable in Heading 8513, HTSUS, which provides for flashlights, as well as in Heading 8527, HTSUS, which provides for radios.

Because classification in a single heading cannot be determined by applying GRI 1, we must apply the other GRI's. GRI 2(b) states that if a product is a mixture or combination of materials or substances that are, prima facie, classifiable in two or more headings, then GRI 3 applies. GRI 3(b) provides that composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character.

The article is essentially a composite good made up of a flashlight and an AM/FM radio clock. Therefore, the component that imparts the essential character to this article determines its classification.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Cooperation Council's official interpretation of the HTSUS. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. EN VIII to GRI 3(b), page 4, states that the factors will vary as between different kinds of goods to determine the essential character of an article. 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 the goods.

In HQ 087161 (August 2, 1990), we classified an AM/FM radio attached to a baseball-style cap according to the rule in GRI 3(c). In that ruling we held that
both the radio and the cap play an equal role in relation to the use of the merchandise. The radio cap would not be purchased for just one of its components. If a purchaser wanted a baseball-style cap, there would be no need for the radio component. Similarly, if a purchaser wanted a portable radio, an article similar to a Walkman-type radio could be purchased, and there would be no need for a cap component.

We followed HQ 087161 and applied GRI 3(c) to a combination radio-flashlight in HQ 952494 (October 8, 1992) and in HQ 952669 (November 30, 1992). In HQ 952494, we held that
both the flashlight and the radio play an equal role in relation to the use of the merchandise. The torch radio would not be purchased for just one of its components. As you stated in your letter, if a person wanted hand carry illumination, they would purchase a flashlight since it would be cheaper. You also stated that Enterprex sells a sports radio without the flashlight. If a person wanted a radio they would buy a radio like Enterprex Sports Radio, model no. GL909. The item here, the Sports AM/FM Torch Radio, offers a person an article that serves the purposes of both a flashlight and that of a radio.

The subject merchandise is substantially similar to the radio/flashlights in HQ 952494 and in HQ 952669. As in HQ 952494 and HQ 952669, neither of the components here (the radio clock and the flashlight), by itself, imparts the essential character to this merchandise. Therefore, GRI 3(c) is applicable. GRI 3(c) states the following:

When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

The heading that occurs last in numerical order is Heading 8527, HTSUS. Therefore, the submitted merchandise is classified in this heading.

Based upon HQ 952494 and HQ 952669, we find that GRI 3(c) applies. The Roadmaster Model No. FL-09-WAL is classifiable under subheading 8527.19.00, HTSUS, which provides for reception apparatus for radio-telephony, radio-telegraphy or radio- broadcasting, whether or not combined, in the same housing, with sound recording or reproducing apparatus or a clock: [r]adiobroadcast receivers capable of operating without an external source of power, including apparatus capable of receiving also radiotelephony or radio telegraphy:. . .[o]ther.

You cited HQ 089877 (December 16, 1991) as precedent for determining the classification of the subject merchandise. In HQ 089877, we held that the essential character of "The Survivor", which consisted of an AM/FM radio with a flashlight, a siren and a fluorescent lamp, was the combination of the two lighting features. Classification of combination articles such as the ones under consideration must be done on a case-by-case basis. In HQ 089877 it was determined that the lighting feature imparted the essential character to the article. There was no intent by us to overrule NY 851307, NY 833371, NY 854079, and NY 854363, or to establish a guideline that lighting always was the essential feature. This is evidenced by our subsequent rulings in HQ 952494 and HQ 952669.

HOLDING:

The submitted merchandise is classifiable under subheading 8527.19.00, HTSUS, which provides for reception apparatus for radio-telephony, radio-telegraphy or radio-broadcasting, whether or not combined, in the same housing, with sound recording or reproducing apparatus or a clock: [r]adiobroadcast receivers capable of operating without an external source of power, including apparatus capable of receiving also radiotelephony or radio telegraphy:. . .[o]ther. The column 1, general rate of duty is 6 percent ad valorem.

The protest should be granted in full. A copy of this decision should be attached to the Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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