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HQ 965852




December 20, 2002

CLA-2 RR:CR:GC 965852 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.92.00

Robert E. Burke
Barnes, Richardson & Colburn
303 East Wacker Drive
Suite 1100
Chicago, IL 60601

RE: Modification of H88002; Solar Caps

Dear Mr. Burke:

This is with respect to NY H88002 dated February 27, 2002, which was issued to you on behalf of Intermatic Incorporated by the Director, National Commodity Specialist Division, in pertinent part, with respect to the classification, under the Harmonized Tariff Schedule of the United States ("HTSUS"), of outdoor solar lights and a solar cap.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification of H88002, as described below, was published in the Customs Bulletin on October 23, 2002.

The only comment received in response to the notice was the comment filed by your office on behalf of Intermatic Incorporated. You take issue with the description of the subject good with a light bulb. While one of the four samples received in this office had a light bulb, for the purpose of this ruling we are willing to state that the subject goods do not contain light bulbs. The subject goods consist of plastic housings with a solar panel and LED. You contend that the goods are classified in subheading 8541.40.60, HTSUS, as composite machines by virtue of Note 3 to Section XVI, HTSUS. We are unpersuaded by your comment. Note 3 to Section XVI, HTSUS, applies to goods of Section XVI, HTSUS. As detailed below, we believe that the subject solar caps are squarely within the exclusion of EN 85.41(B)(2)(i), excerpted below, such that they are not classified in heading 8541, HTSUS. The solar caps are goods which are beyond the scope of heading 8541 and its subheadings. See HQ 962957 dated October 23, 2000, and the discussion below. The solar caps are fully described in heading 9405, HTSUS, as parts of a lamp.

FACTS:

In NY H88002, the goods were described as follows:

The articles in question are identified as solar outdoor lights used in a garden or around a home. Each solar light is comprised of a solar cap component from China and components produced in Mexico. The solar cap is made of a solar light panel connected to a light emitting diode (LED) mounted in a plastic housing . . . The components manufactured in Mexico are produced by molding from plastic material such as pellets or chips and include the tiers, coupling, reflector, riser, globe and ground stake. The Mexican parts and a solar cap are combined in a package for importation into the United States as a complete but unassembled solar outdoor light.

The subject goods consist of plastic housings with a solar panel and LED.

In NY H88002, Customs classified the solar caps in subheading 8541.40, HTSUS, and the outdoor lights in subheading 9405.40.80, HTSUS. Customs now believes the classification of the solar caps to be in error. This ruling sets forth the correct classification of the solar caps.

ISSUE:

What is the classification under the HTSUS of the solar caps?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The HTSUS provisions under consideration are as follows:

8541 Diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes; mounted piezoelectric crystals; parts thereof:

8541.40 Photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes:

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:

Parts:

9405.92.00 Of plastics

EN 85.41(B) discusses photosensitive semiconductor devices, including photovoltaic cells. EN 85.41(B)(2)(i) provides in pertinent part as follows:

The heading also covers solar cells, whether or not assembled in modules or made up into panels. However the heading does not cover panels or modules equipped with elements, however simple, (for example, diodes to control the direction of the current), which supply the power directly to, for example, a motor, an electrolyser (heading 85.01). [All emphasis in original.]

We find that, when imported into the United States, the subject solar caps contain elements other than the photosensitive semiconductor devices which are within the scope of the EN exclusion described above. The solar caps contain both photosensitive cells and light emitting diodes, as well as part of the plastic lamp which contains at least the electronic components for connecting the cells and diodes to battery housings. See generally HQ 962957 dated October 23, 2000. Therefore, we conclude that they are not classified in heading 8541, HTSUS. We find that the solar caps are described in the heading text of heading 9405, HTSUS, because they are parts of lamps not elsewhere specified or included. Accordingly, we determine that the solar caps are classified in subheading 9405.92.00, HTSUS.

HOLDING:

The solar caps are classified in subheading 9405.92.00, HTSUS, as: “Lamps and lighting fittings . . . and parts thereof, not elsewhere specified or included . . . : . . . Parts: . . . Of plastics.”

EFFECT ON OTHER RULINGS:

NY H88002 is modified. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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