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HQ 965373




July 26, 2002

CLA-2: RR:CR:GC 965373 DBS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.40.80

Port Director
U.S. Customs Service
477 Michigan Avenue
Suite 200
Detroit, MI 48226

RE: Protest 3801-00-100237; Sof-Touch Flexible Lighting System

Dear Port Director:

This is our decision on Protest 3801-00-100237 filed by a broker on behalf of International Trading Co., Inc., against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a flexible lighting system. The entry was liquidated on December 27, 1999, and the protest timely filed on March 24, 2000.

FACTS:

The subject merchandise, which is identified as “Sof-Touch Flexible Lighting System,” is described by the importer as a series/parallel circuit of mini bulbs encased in a solid and flexible 3/8” diameter PVC extrusion. The product is available in 12 volt and 110 volt. Each retail kit includes a power cord, connector and end cap. The lighting system is predominantly sold for use in marine vehicles and recreational vehicles, though it may be used in other applications. Product literature states that the lighting may be used for both interior and exterior applications.

You classified the goods in subheading 9405.40.80, HTSUS, as lamps and lighting fittings, not elsewhere specified or included. The protestant claims the goods are classifiable in subheading 8512.20.20, HTSUS, as electrical lighting or signaling equipment of a kind used for motor vehicles. ISSUE:

Whether Sof-Touch Flexible Lighting is classifiable in heading 8512, HTSUS, as electrical lighting or signaling equipment of a kind used for motor vehicles or in heading 9405, HTSUS, as lighting not elsewhere specified or included.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note. In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

8512 Electrical lighting or signaling equipment (excluding articles of heading 8539), windshield wipers, defrosters and demisters, of a kind used for cycles or motor vehicles; parts thereof:

8512.20 Other lighting or visual signaling equipment:

8512.20.20 Lighting equipment

9405 Lamps and lighting 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:

9405.40 Other electric lamps and lighting fittings:

9405.40.80 Other

As the protestant notes, Customs determined in NY Ruling Letter 884386, dated April 9, 1993, that a particular lamp designed for use in a recreational vehicle was classifiable in subheading 8512.20.20, HTSUS. The qualifying language in heading 8512, HTSUS, “of a kind used for cycles or motor vehicles” is a provision governed by “principal use.” See Group Italglass U.S.A., Inc. v. United States, 839 F. Supp. 866, 867 (Ct. Int’l Trade 1993). In accordance with Additional U.S. Rule of Interpretation 1(a), HTSUS, the controlling use is the principal use at or immediately prior to the date of importation of the goods of that class or kind to which the import belongs. "Principal use" is defined as the use "which exceeds any other single use." Id.

Principal use in each case depends on the evidence presented, with the burden of proof falling on the person seeking to establish such use. Drawings, brochures and advertisements, as well as statements from manufacturers, users, buyers, etc. are taken into consideration. Whenever possible, Customs will view available evidence in the light most favorable to the importer. In this case, a request for a submission on principal use was made, but the protestant failed to submit any additional information. We therefore must make our determination based on what information we have before us.

EN 85.12 states, in part, that the heading covers electrical apparatus and appliances “specialised for use on cycles or motor vehicles for lighting or signalling purposes.” In the protestant’s “Detailed Reasons for Protest,” the protestant states that there are many applications for this type of lighting, including marine vehicles, recreational vehicles and illumination of walkways that may require low-level lighting. Also included in the protestant’s submission is a letter stating the lighting is used in both marine vehicles and recreational vehicles. However, the lighting is not “specialised for use” on motor vehicles because it has various applications.

Next, the protestant states that the vast majority of the product is incorporated into recreational vehicles, and thus use of the product is for motor vehicles. The aforementioned letter does not support this statement, nor was any information submitted to support this statement. We have no proof that use in recreational vehicles exceeds any other single use. On the contrary, the evidence available suggests that the product has many uses. Therefore, the principal use of this product is not discernable. Accordingly, the product cannot be classified in heading 8512, HTSUS.

The ENs to heading 9405, HTSUS, state, in pertinent part, that lamps and light fittings, not elsewhere specified or included, “can be constituted of any material (excluding those materials described in Note 1 to Chapter 71) and use any source of light (candles, oil, petrol, paraffin (or kerosene), gas, acetylene, electricity, etc.).” Further, the heading covers in particular, lamps and lighting fittings for the vehicles of Chapter 86, for aircraft or for ships or boats. Therefore, lighting used in marine vehicles is appropriately classified here. As this lighting has a range of uses, including motor vehicles, marine vehicles and other interior and exterior lighting, and no principle use has been proven, it is lighting not elsewhere specified or included, classifiable according to GRI 1 in heading 9405, HTSUS.

HOLDING:

Sof-Touch Flexible Lighting is classifiable in 9405.40.80, HTSUS, which provides for, “Lamps and lighting 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: other electric lamps and lighting fittings: other.”

The protest should be DENIED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division


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