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HQ 953262


July 26, 1993

CLA-2 CO:R:C:M 953262 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8513.10.20

District Director of Customs
U.S. Customs Service
610 South Canal Street
Chicago, Illinois 60607

RE: IA 62/92 "Rally Rite Lites;" Flashlights; Lamps, portable, electric; HRL 951855

Dear Sir:

This request for internal advice concerning the tariff classification under the Harmonized Tariff Schedule of the United States, of "Rally Rite Lites" was initiated by a letter dated July 21, 1992, from the law firm of Sonnenberg, Anderson, O'Donnell & Rodriquez, on behalf of HD Electric Company of Deerfield, Illinois. An additional brief dated July 12, 1993, was also submitted on this matter. Samples and advertising material were submitted for examination.

FACTS:

The merchandise, known as "Rally Rite Lites," consists of small, battery-operated disposable lights having a polystyrene housing with an angled rectangular head containing a reflector, a bulb socket and a clear lens. On the side of the rectangular head is a two position "on-off" switch. The "Rally Rite Lites," which are also lightweight, have a self-contained power source designed to fit, by means of a Velcro-like strip, all hard hats in such a manner that there are no exposed metal parts. There are two different models of "Rally Rite Lites." "Rally Rite Lite" I has a 4.5 volt zinc carbon battery and a black housing while "Rally Rite Lite" II has a 4.5 volt alkaline battery and a yellow housing. After importation, a strip of velcro is included in each lamp's packaging either attached to the lamp or as part of the packaging. The velcro is not imported with the lamp but is sold in the U.S. with the lamp.

Counsel for the inquirer claims that the "Rally Rite Lites" are properly classifiable under subheading 8513.10.40, HTSUS, as 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, lamps, other. The applicable rate of duty for this provision is 6.9% ad valorem.

You contend that this merchandise is classifiable under subheading 8513.10.20, HTSUS, as 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, lamps, flashlights. The applicable rate of duty for this provision is 25% ad valorem.

ISSUE:

Are the "Rally Rite Lites" classifiable under subheading 8513.10.40, HTSUS, as portable electric lamps, other than flashlights or are they classifiable under subheading 8513.10.20, HTSUS, as flashlights?

LAW AND ANALYSIS:

Classification of good under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "Classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." GRI 6, HTSUS, requires that the GRI's be applied at the subheading level on the understanding that only subheadings at the same level are comparable. The GRI's apply in the same manner when comparing subheadings within a heading.

Counsel for the inquirer claims that the "Rally Rite Lites" are classifiable under subheading 8513.10.40, HTSUS, as portable electric lamps, other than flashlights for the following reasons:

1. These lights are bulky and awkward in construction and are not suitable for hand-held use as were the bicycle headlights ruled on in Headquarters Ruling Letter (HRL) 072195 dated October 13, 1983.

2. These lights which are designed for use on hard hats do not meet the definition of a flashlight set out in New York Ruling Letter (NYRL) 840381 dated May 22, 1989. The term "flashlight" was defined therein as "a small battery-operated portable electric light normally held in the hand by the housing itself, whose primary function is to project a beam of light."

3. The "Rally Rite Lites" should not be classified as flashlights because they are similar to the miner's type lamp ruled on in NYRL 835124 dated February 1, 1989, and the explorer's headband light ruled on in NYRL 865742 dated August 9, 1991. Both products were classified as portable electric lamps other than flashlights in subheading 8513.10.40, HTSUS.

4. The "Rally Rite Lites" are marketed as per brochures as hands-free lamps designed to be attached to hard hats.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUS, although not dispositive, should be looked to for the proper interpretation of the HTSUS. See 54 FR 35128 (August 23, 1989). The EN to heading 85.31, at page 1351, reads in pertinent part, as follows:

This heading covers portable electric lamps designed to function by means of a self-contained source of electricity (e.g., dry cell, accumulator or magneto).

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. . . .

It is our opinion that the "Rally Rite Lites" are more properly classifiable as flashlights than as other portable electric lamps for the following reasons:

1. Their construction does not preclude classification as flashlights because they meet the criteria for being considered a flashlight set out in HRL 951855 dated July 24, 1992. In that ruling Customs held that a cube-shaped portable lighting device measuring 2-3/4 inches by 2-3/4 inches by 2 inches is a flashlight.

2. Examination of the samples reveals that the "Rally Rite Lites" project a beam of light and can be easily held in the hand by their housings. Contrary to inquirer's claim, they are not comparable to the bicycle headlights which were the subject of HRL 072195 dated October 13, 1983. Clearly, those headlights were not designed to be hand-held by either the presence of a handle or by design.

3. The "Rally Rite Lites" are not comparable in design to the aforementioned miner's type lamp (having a clip for attachment to a headband and electrical wiring for connection to a power pack) and the explorer's headband (having a textile band and electrical wiring for connection onto a battery). The "Rally Rite Lites" have only the features of a flashlight and do not, upon importation, contain any auxiliary adjuncts for attachment purposes.

4. The "Rally Rite Lites" are not only advertised for use as headlights, but also for use as flashlights. See Bulletin No. BC-100 which reads in pertinent part, as follows:

Use the Rally light as a flashlight whenever desired. Palm sized shape conveniently fits in hand. Emphasis added.

It should be noted that these lights are only suitable as headlights by affixing a side of the Velcro-like strip to the hat and the other side to the light. Moreover, it is a cardinal principle of Customs law that merchandise is classifiable in its condition as imported. Inasmuch as these lights will be imported without any attachment strips, they are indeed more suitably designed to be used as flashlights.

HOLDING:

The "Rally Rite Lites" are dutiable at the rate of 25% ad valorem under subheading 8513.10.20, HTSUS, as flashlights.

You should inform counsel for the inquirer of this ruling.

Sincerely,

John Durant, Director
Commercial Rulings Division


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