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HQ 957164




May 15, 1995

CLA-2 R:C:M 957164 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8513.10.20

Ms. Pamela A. Grzonka
Play-By-Play Toys & Novelties
4400 Tejasco
P.O. Box 18267
San Antonio, TX 78218-0267

RE: Pen light; Fancy torch; HRL 951855; NYRL 802974 affirmed

Dear Ms. Grzonka:

In a letter dated January 26, 1995, you asked that New York Ruling Letter (NYRL) 802974 issued to you on November 10, 1994, by the Area Director of Customs, New York Seaport, be reconsidered. That ruling concerned the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a pen light produced in Hong Kong. A sample labelled "Grandpa's Pen Light" was submitted for examination.

FACTS:

The merchandise involved, identified as a pen light, is a portable battery operated electrical lighting device. It is cylindrical in shape and measures approximately 5 inches in length and 5/8 inch in diameter. The device has a filament bulb, a reflector and a pocket clip at the top which also serves as the on/off switch.

In NYRL 802974, Customs ruled that the subject pen light is classifiable under subheading 8513.10.20, HTSUS, which provides for portable electric lamps designed to function by their own source of energy, lamps, flashlights. The applicable rate of duty for this provision is 22.5% ad valorem.

You claim that the pen light is properly classifiable under subheading 8513.10.40, HTSUS, which provides for portable electric lamps designed to function by their own source of energy, lamps, other. The applicable rate of duty for this provision is 6.2% ad valorem.

ISSUE:

Is the pen light considered a flashlight for tariff purposes?

LAW AND ANALYSIS:

Classification of goods 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]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

The Harmonized Commodity Description and Coding System Explanatory Notes to the HTSUS (EN), although not dispositive, or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). You cite EN 85.13(6), at page 1351, in support of your contention that the merchandise is other than a flashlight. EN 85.13(6) reads, as follows:

The lamps of this heading include:

(6) Fancy torches in the shape of pistols, pens, etc. Composite articles composed of a lamp or torch and a pen, screwdriver, key ring, etc., remain classified here only if the main function of the whole is the provision of light.

We would not characterize "Grandpa's Pen Light" as a "Fancy torch." Subheading 8513.10.20, HTSUS, covers flashlights. Customs has defined flashlights as small battery-operated portable electric lights normally held in the hand by the housing itself, the primary function of which is to project a beam of light. Subheading 8513.10.40, HTSUS, covers all other portable electric lamps designed to function by their own source of energy. Since the device in question projects a beam of light, is battery-operated and will be held in the hand by its housing, it meets the definition of a flashlight. See Headquarters Ruling Letter (HRL) 951855 dated July 24, 1992

HOLDING:

The subject pen light is dutiable at the rate of 22.5% ad valorem under subheading 8513.10.20, HTSUS.

NYRL 802974 is affirmed.

Sincerely,

John Durant Director
Commercial Rulings Division

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