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HQ 966263




May 28, 2003

CLA-2 RR:CR:GC 966263 MG

CATEGORY: CLASSIFICATION

TARIFF NOS.: 8513.10.20; 8513.10.40; 8506.80.00

David R. Ostheimer, Esq.
Lamb & Lerch
233 Broadway
New York, NY 10279

Dear Mr. Ostheimer:

This is in reply to your letter of December 17, 2002, to the Director, National Commodity Specialist Division, New York, requesting a binding classification on the “Combo Pack,” under the Harmonized Tariff Schedule of the United States (HTSUS), on behalf of Dorcy International, Inc. Your letter has been forwarded to this office for reply and a representative sample of the Combo Pack provided with such request.

FACTS

According to your letter, the flashlights contained in the Combo Pack are battery-operated, cylindrical-shaped plastic devices consisting of a reflector, a light bulb, a clear plastic lens and a slide-switch light mechanism. The lanterns are battery-operated, cylindrical-shaped plastic devices consisting of a reflector, a light bulb, a clear plastic lens and a slide-switch light mechanism that project a beam of light. The lanterns are bulky and not designed to be entirely carried in the hand by their housing without using the attached carry handle. The batteries that Dorcy may import within each Combo Pack are standard 6-volt, AAA, AA, C and D batteries.

The Combo Pack is comprised of a lantern, one or more flashlights, and a corresponding amount of non-rechargeable batteries for each, all packed together and imported for retail sale.

Because the Super Value Pack constitutes a representative sample of the Combo Pack, the holding of this ruling is equally applicable to both products. In this regard, the Combo Pack and Super Value Pack are hereinafter collectively referred to as “Combo Pack”.

ISSUE

Whether the Combo Pack meets the criteria contained in General Rule of Interpretation 3 so as to be considered a set for tariff purposes. What is the classification under the HTSUS of the Combo Pack, or the items which comprise it?

LAW AND ANALYSIS

The General Rules of Interpretation (GRI) of the Harmonized Tariff Schedule of the United States (HTUS) govern the proper classification of merchandise. See, 3G Mermet Fabric Corp., v. United States, 135 F. Supp. 2d 151 (CIT 2001), GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. For an article to be classified in a particular heading, such heading must describe the article, and not be excluded therefrom by any legal note. Hence, if the merchandise is not classifiable in accordance with GRI 1 and if the headings and legal notes do not otherwise require, the merchandise may be classified in accordance with subsequent GRI.

The Explanatory Notes (ENs) are the official interpretation of the scope of the Harmonized Commodity Description and Coding System, which served as the basis for the HTSUS. The Court of International Trade has held that while the Explanatory Notes “do not constitute controlling legislative history, they nonetheless are intended to clarify the HTSUS subheadings and to offer guidance in interpreting its subheadings.” See Structural Industries, Inc. v. United States, Slip Op. 02-141, p.5 n. 1 (Dec. 4, 2002), citing Jewelpack Corp. v. United States, 97 F. Supp. 2d 1192, 1196 n.6 (CIT 2000). Moreover, the Explanatory Notes are especially persuasive “when they specifically include or exclude an item from a tariff heading.” See H.I.M./Fathom, Inc. v. United States, 981 F. Supp. 610, 613 (1997).

The HTSUS provisions under consideration are as follows:

8506 Primary cells and primary batteries; parts thereof:

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:

Flashlights

8513.10.40 Other

An examination of GRI 3 becomes appropriate when goods are prima facie classifiable under two or more headings. The Combo Pack consists of goods that are classifiable under two or more headings. GRI 3(a) provides that the articles be classified according to the heading which affords the most specific description, unless the multiple headings under consideration refer to only part of the materials or substances contained in goods that are mixed or composite, or to only part of “items in a set put up for retail sale.”

The precise phrase in GRI 3(a) “items in a set put up for retail sale” is not addressed in the ENs. The ENs, however, address a similar phrase employed in GRI 3(b) as “goods put up in sets for retail sale.” See, EN (X) for GRI 3(b). Customs conclusively stated in HQ 963670 (April 12, 2002), that the two phrases address the same issue.

Explanatory Note (X) for GRI 3(b) provides three factors to be considered when determining whether goods have been put up in sets for retail sale. The factors are:

The goods consist of at least two different articles that are, prima facie, classifiable in different headings;

The goods consist of articles put up together to “meet a particular need or carry out a specific activity;” and

The goods are “put up in a manner suitable for sale directly to users without repacking.”

A review of the HTSUS and an examination of the goods comprising the Combo Pack reveal that the merchandise consists of three different articles which are prima facie classifiable in different headings. The lantern and flashlight are classified under heading 8513, HTSUS, and the battery is classified under heading 8506, HTSUS. All three articles are packaged together in a manner suitable for sale directly to the consumer without repackaging and, according to your letter, all of the articles comprising the Combo Pack are manufactured in China and blistered packaged prior to importation and ready for retail sale.

Since the three factors set forth in EN (X) for GRI 3(b) are listed in the conjunctive, all three must be met by the Combo Pack to be deemed a set for tariff classification purposes.

See, HQ 083149 (December 7, 1989) Since factors one and three are clearly fulfilled by the Combo Pack, the issue that remains to be determined is whether the articles put together “meet a particular need or carry out a specific activity.” See HQ 963670. The Explanatory Notes do not define the phrase “meet a particular need or carry out a specific activity.” The EN’s do, however, offer examples of items put up together for sale directly to the user which constitute sets. The initial example consists of “a sandwich made of beef, with or without cheese, in a bun,packaged with potato chips (French Fries).” The second example consists of items to be used together to prepare a spaghetti meal. The components include: (1) A packet of uncooked spaghetti; (2) A sachet of grated cheese, and (3) A small tin of tomato sauce, put up in a carton. The third example is a hairdressing set. The items in this set include: (1) A pair of electric hair clippers; (2) A comb; (3) A pair of scissors; (4) A brush; (5) A towel of textile material; and (6) a leather case to store and carry the items. The final example of a set is a drawing kit. The drawing kit includes five items put up together in a case of plastic sheeting. The items are: (1) A ruler; (2) A disc calculator; (3) A drawing compass; (4) A pencil; and (5) A pencil-sharpener, put up in a case of plastic sheeting. Customs has interpreted that such determination is done on a case-by-case basis. The fact that the drafters of EN (X) did not explain when goods put up together “meet a particular need or carry out a specific purpose” suggests that resolution of the issue must be determined by analogy on a case-by-case basis. Id

You assert that the Combo Pack satisfies factor two of the test, (i.e., EN (X)(b)) because the goods are put together to carry out a specific activity, namely to provide illumination. For goods to be put to meet the “particular need” or “specific activity” requirement and thereby be deemed a set, they must be so related so as to be clearly intended for use together or in conjunction with one another for a single purpose or activity. See HQ 953472 In this case, claimant stated that the combination of shoes and accompanying promotional literature satisfies the particular need of “having shoes to wear”. We concluded however, that although both individual items are related to footwear, they serve a “separate practical purpose” and “do not result in a combination that meets a single need or activity”. (March 21, 1994)

A review of each of the examples of sets in EN (X) indicates that components of sets share at least one common trait. Id. For instance, the items that comprise each example of a set in EN (X) are related to one another in such a fashion that they interact together to serve a distinct purpose or function to enable a singular result to be achieved. The items contained in footnote 4 and set forth in examples one and two are used in conjunction with one another to complete a sandwich meal and prepare a spaghetti meal. The articles in example three are used together for the purpose of hair grooming and the items in example four function with one another to enable the user to draw.

In addition to offering examples of items that constitute sets, EN (X) also provides two examples where articles put up together are not regarded as sets, notwithstanding the fact that they are “related to one another” and “can be used at the same time.” The example pertaining to canned goods consists of a can of shrimp, a can of pate de foie, a can of cheese, a can of sliced bacon and a can of cocktail sausages. In this example, although related to one another and usable together, the items do not “interact with one another so as to comprise a single dish.” See HQ 963670.

The second example includes a bottle of spirits and a bottle of wine. It was decided that although both items contain alcohol and may be served together at a dinner or party and may have been packaged for the specific activity of “social drinking,” together they do not constitute a set because they are not used “in conjunction with one another so as to be suitable for a single drink or for use on a specific occasion.” See HQ 953472 and HQ 963670.

At this point, the key inquiry is whether the flashlight has a nexus with the lantern such that both are intended to be used together or in conjunction with one another to meet a particular need or carry out a specific activity. Although the lantern and the flashlight fulfil the same purpose (i.e., provide illumination) they need not be used in concert in order to achieve such function.

Furthermore, the flashlight and lantern are “not so inextricably involved with each other that they cannot perform independent roles” and “their utility is not limited to their interaction.” See, NY H80113 (April 20, 2001) Indeed, both the lantern and the flashlight provide illumination, but the use of one is irrespective of the use of the other and they do not interact together to enable such result.

In this regard, the components of the Combo Pack fail to constitute a set for tariff classification purposes. Accordingly, it is Customs determination that because the Combo Pack does not meet the criteria for treatment as a GRI 3 set, all of the articles constituting the Combo Pack shall be classified individually under their respective headings in the HTSUS under GRI 1.

The term “flashlight” has been defined as a “small, battery operated, portable electric light normally held in the hand by the housing” to project a beam of light. See HQ 965772 (September 25, 2002), citing Sanyo Electric Inc. v. United States, 496 F.Supp. 1311, aff’d., 642 F.2d 435 (1981). With regard to the term “lantern,” Customs has decided that “one of the differences between a flashlight and a lantern is that a flashlight is normally held entirely in the hand by the housing itself, while a lantern has a handle on its framework so that it can be carried.” As in the instant case, “since the housing of the subject device has a molded plastic carrying handle and is not held in the hand by the housing, it is a lantern and not a flashlight.” See HQ 952087 (July 23, 1992)

Hence, the subject flashlight is classifiable in subheading 8513.10.20, HTSUS, which provides for portable electric lamps designed to function by their own source of energy, lamps, flashlights; and the lantern is classifiable in subheading 8513.10.40, HTSUS, which provides for other portable electric lamps designed to function by their own source of energy, lamps, other.

Since no indication is made as to the type of batteries (i.e., alkaline, lithium, etc.), the batteries are classified under one of the subheadings from 8506.10.00 through 8506.80.00, HTSUS.

HOLDING

The subject flashlight is classified in subheading 8513.10.20, HTSUS.

The subject lantern is classified in subheading 8513.10.40, HTSUS.

The batteries are classified under one of the subheadings from 8506.10.00 through 8506.80.00, HTSUS, depending on the type of battery.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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