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HQ 959086




JULY 8, 1996

CLA-2 RR:TC:MM 959086 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8513.10.20

Gary L. Bohlke, Esq.
Semmes, Bowen & Semmes, P.C.
250 West Pratt Street
Baltimore, MD 20201

RE: NY 816958 Affirmed; Travel Gear Plug-In Rechargeable Light; Hand-Held Illumination Device That Plugs Into Car's Cigarette Lighter; Heading 8512, Electrical Lighting or Signaling Equipment for Motor Vehicles Flashlight; HQ 084852, HQ 955160, NY 860561, NY 891968; 642 F.2d 435

Dear Mr. Bohlke:

In a letter, dated March 25, 1996, on behalf of Eveready Battery Company, Inc., you ask that we reconsider a classification ruling issued to your client on a plug-in rechargeable light produced in China. A sample was submitted.

FACTS:

In NY 816958, dated January 24, 1995, the Director, National Commodity Specialist Division, New York, determined that the Travel Gear model EM290 rechargeable light was classifiable as a portable electric lamp, flashlight, in subheading 8513.10.20, Harmonized Tariff Schedule of the United States (HTSUS). The EM290 is a push-button plastic illuminating device designed to project a beam of light. It measures approximately 4 1/4 inches long and is designed to be held in the hand. The EM290 is battery-operated and can be recharged by plugging one end into the cigarette lighter socket of an automobile or truck.

In its ruling request, Eveready advocated classification in subheading 8512.20.20, HTSUS, a duty-free provision for other lighting or visual signaling equipment, lighting equipment, of a kind used for motor vehicles. Customs rejected that classification on the basis that the device is a flashlight and, therefore, not of a kind used on motor vehicles. You now - 2 -
maintain that the light is designed solely for use with a motor vehicle and derives its source of energy, i.e., can be charged and recharged, solely from a motor vehicle. You cite several administrative rulings to substantiate the heading 8512 classification.

The provisions under consideration are as follows:

8512 Electrical lighting or signaling equipment...of a kind used for...motor vehicles; parts thereof:

8512.20 Other lighting or visual signaling equipment:

8512.20.20 Lighting equipment...Free

8513 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:

8513.10 Lamps:

8513.10.20 Flashlights...20 percent ad valorem

8513.10.40 Other...5.5 percent ad valorem

ISSUE:

Whether the model EM290 rechargeable light is lighting equipment of heading 8512; if not, whether it is a flashlight of heading 8513.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided the headings or notes do not require otherwise, according to GRIs 2 through 6. GRI 6 states - 3 -
in part 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, by appropriate substitution of terms, to GRIs 1 through 5, on the understanding that only subheadings at the same level are comparable.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

By the terms of the respective headings, if the model EM290 is lighting equipment of heading 8512 it cannot be a portable electric lamp or flashlight of heading 8512. In this regard, the ENs at p. 1349 state, in relevant part, that heading 85.12 covers electrical apparatus and appliances specialized for use on motor vehicles for lighting or signaling purposes. The following are listed at p. 1350 among the electrical lighting apparatus included in heading 85.12:

(3) Headlamps of all kinds including lamps fitted with dimming or dipping attachments; diffused driving lamps; anti-fog lamps; spot-lights; search lamps of a kind used on police cars or the like (including those which, attached to a length of cable, can be used as hand lamps or can be placed on the road).

(4) Side lamps; tail lamps; parking lamps; license plate lamps.

(5) Braking lights, direction indication lights, reversing lamps, and the like (Emphasis original).

These lamps and lights are specialized for use on or incorporated into motor vehicles. The EM290 does not meet this criterion. It is electrical lighting apparatus designed to be used independently of a motor vehicle. The fact it may be rechargeable by means of a vehicle's cigarette lighter is not legally relevant. For example, while the search lamps for police - 4 -
cars listed in (3), above, can be used as hand lamps or placed on the road, they are attached to the vehicle by cable and presumably, can operate only in that mode.

The rulings which you cite are factually distinguishable and do not, in our opinion, support the heading 8512 classification for the EM290. HQ 955160, dated April 1, 1994, concerns a combination spotlight and amber flasher, used alternately, with magnetic base and self-contained electrical cord designed to be inserted into a motor vehicle's cigarette lighter. The sample submitted with the ruling request has no battery nor any means of accommodating one. The spotlight/flasher, therefore, is not capable of independent use and can only be used when inserted into the cigarette lighter. NY 891968, dated November 5, 1993, reached the same conclusion with respect to an identical device, the "Two-in-One Roadside Light." NY 860561, dated March 5, 1991, concerns a 12-volt, 8-watt fluorescent work light said to be principally used with motor vehicles. It has a 15-foot cord with cigarette and battery clip (otherwise undescribed), a plastic hook, and plastic upright support stand. The work light is said to operate by plugging into the motor vehicle's cigarette lighter, which we interpret as being its only means of operation. The devices in these rulings are akin to the search lamps listed under (3) in the cited 85.12 ENs which are attached to the vehicle by means of a cable. This eliminates heading 8512 from consideration.

Regarding heading 8513, under GRI 3(a), HTSUS, applied at the subheading level through GRI 6, the provision for portable electric lamps, flashlights, if it applies, would be more specific than the provision for other portable electric lamps. See HQ 084852, dated March 28, 1990. The term flashlight has been judicially determined to encompass small, battery-operated, portable electric lights. Sanyo Electric Inc. v. United States, 496 F.Supp. 1311, aff'd. 642 F.2d 435 (1981). Instructions on the reverse of the blister pack in which the sample is packaged bear numerous references to "flashlight." We conclude that the EM290 rechargeable light is a flashlight for tariff purposes.

HOLDING:

Under the authority of GRI 3(a), applied at the subheading level by GRI 6, the Travel Gear model EM290 plug-in rechargeable light is provided for in heading 8513. It is classifiable in subheading 8513.10.20, HTSUS. NY 816958, dated January 24, 1995, is affirmed.

Sincerely,

John Durant, Director
Tariff Classification

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