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HQ 966327




May 28, 2003

CLA-2 RR:CR:GC 966327 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.40.80; 8518.21.00; 8518.90.80; 8512.20.20; 8536.69.80; 8543.89.96

Port Director
U.S. Customs and Border Protection
301 E. Ocean Blvd., 8th Floor
Long Beach, CA 90802

RE: Protest 2704-02-102270

Dear Port Director:

This is our decision regarding Protest 2704-02-102270, filed on behalf of Roadmaster USA Corp. (“protestant”) concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of the merchandise described below.

FACTS:

The file reflects the following. The 16 entries at issue were filed between November 7, 2001 and June 5, 2002. The entries were liquidated between August 2, 2002 and October 11, 2002. The protest was filed on October 30, 2002.

The Customs Protest Report (CF 6445A) describes the subject merchandise as follows: 1. 2-10” neon light rings – model RNK 100 2. speaker grill – model RNK 690
3. 12” enclosure with neon – model RSE 120 WNL 4. cyber eyes – model SCE 2
5. neon dice light – model SDL 2
6. flexible mini neon light – model SFL 2 7. glowcaps – model SGC 2
8. neon license – model SLF 100
9. 10” neon ice – model SLS 101
10. 10” neon liquid – model SLS 10L
11. controller controls – model SNC 400 12. 15” neon light stick – model SNL 15 13. 4” mini light – model SNL 4
14. 10” neonlight stick – model SNL 5 15. tweeter with neon rim – model SNT 20 16. quadro socket adapter – model SQC 4 17. radio neon – model SRN
18. neon shift knob – model SSK 10
19. string light – model SSL 5
20. 6” thin tube neon – model STL 6

The record reflects that the goods were entered under either subheading 8512.20.20, HTSUS, or subheading 8539.29.30, HTSUS. The entries were liquidated under subheading 8543.89.96, HTSUS, or subheading 9405.40.80, HTSUS.

ISSUE:

What is the classification under the HTSUS of the above-described goods?

LAW AND ANALYSIS:

We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).

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 headings under consideration are as follows:

8512 Electrical lighting or signaling equipment (excluding articles of heading 8539) . . . of a kind used for cycles or motor vehicles; parts thereof:

8518 Microphones and stands therefor; loudspeakers, whether or not mounted in their enclosures; headphones and earphones, whether or not combined with a microphone, and sets consisting of a microphone and one or more loudspeakers; audio-frequency electric amplifiers; electric sound amplifier sets; parts thereof:

8536 Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders, junction boxes), for a voltage not exceeding 1,000 V:

8539 Electrical filament or discharge lamps . . .; parts thereof:

8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:

9405 Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included . . .

EN 85.12 provides in pertinent part as follows: “This heading covers electrical apparatus and appliances specialised for use on cycles or motor vehicles for lighting or signalling purposes.” [Emphasis supplied.] We find that the following items are used for decorative purposes, and not for lighting or signalling purposes: model RNK 100 (#1 in FACTS section); model SCE 2 (#4); model SDL 2 (#5); model SGC 2 (#7); model SLF 100 (#8); model SLS 101 (#9); model SLS 10 L (#10); model SNL 15 (#12); model SNL 4 (#13); model SNL 6 (#14); model SRN (#17); model SSK 10 (#18); model SSL 5 (#19); and model STL 6 (#20). Therefore, we find that these items are not classified in heading 8512, HTSUS. We find that these items are provided for in heading 9405, HTSUS, and are classified in subheading 9405.40.80, HTSUS, as: “Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included . . . : Other electric lamps and lighting fittings: Other.”

This result is consistent with HQ 965373 dated July 26, 2002, where we classified the following good in subheading 9405.40.80, HTSUS: “. . . Sof-Touch Flexible Lighting System . . . described . . . as a series/parallel circuit of mini bulbs encased in a solid and flexible 3/8” diameter PVC extrusion . . . The lighting system is predominantly sold for use in marine vehicles and recreational vehicles, though it may be used in other applications.” Similarly, in NY B84548 dated May 9, 1997, Customs classified the following good in subheading 9405.40.80, HTSUS: “. . . a neon light kit . . . designed to be installed in either auto or marine vehicles for such purposes as interior accent lighting and decorative stripping.”

Further in support of our determination, in HQ 965248 dated July 26, 2002, we stated:

Under the language of the HTSUS, Customs has determined that articles which light up but are of a decorative nature, rather than being used to provide usable light for illuminating an area, are provided for under heading 9405, HTSUS. . . . See HQ 962901 (September 28, 1999), citing Primal Lite v. United States, 15 F. Supp. 2d 915 (Ct. Int’l Trade 1998); aff’d 182 F. 3d 1362 (CAFC 1999). Customs found that an electric light “not intended primarily for illumination but for decoration” was classified as other electric lamps and lighting fittings, other, under subheading 9405.40.80, HTSUS. NY F8370 [83270] (March 6, 2000), see also NY G81588 (September 18, 2000) (an illuminated ice cube is classified under subheading 9405.40.80, HTSUS).

We find two rulings cited by the protestant (HQ 955160 dated April 1, 1994 and NY 860561 dated March 5, 1991) in support of its claim of classification in subheading 8512.20.20, HTSUS to be distinguishable from this case in that the goods enumerated above do not perform a lighting function. In contrast, HQ 955160 involved a swivel spotlight with an amber flasher. NY 860561 involved an 18” worklight.

We find that the following items are provided for in heading 8518, HTSUS, because they have the indicia of loudspeakers or parts thereof: RNK 690 (#2 in FACTS section); RSE 120 WNL (#3); and SNT 20 (#15). SNT 20 (#15) is classified in subheading 8518.21.00, HTSUS, as: “. . . loudspeakers, whether or not mounted in their enclosures . . . : Loudspeakers, whether or not mounted in their enclosures: Single loudspeakers, mounted in their enclosures.” RNK 690 (#2) and RSE 120 WNL (#3) are classified in subheading 8518.90.80, HTSUS, as: “ . . . loudspeakers, whether or not mounted in their enclosures . . . parts thereof: Parts: Other: Other.”

We find that model SFL 2 (#6) is classified in subheading 8512.20.20, HTSUS, as: “Electrical lighting or signaling equipment (excluding articles of heading 8539) . . . of a kind used for cycles or motor vehicles; parts thereof: Other lighting or visual signalling equipment: Lighting equipment.” This item may be considered as vehicle lighting equipment as it appears that it may produce enough light to assist in the reading of a map or other printed materials.

We find that model SQC 4 (#16) is classified in subheading 8536.69.80, HTSUS, as: “Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders, junction boxes), for a voltage not exceeding 1,000 V: Lamp holders, plugs and sockets: Other: Other.”

We find that model SNC 400 (#11) is classified in subheading 8543.89.96, HTSUS, as: “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and apparatus: Other: Other: Other: Other.” This item is not described in any of the other provisions.

In addition to heading 8512, HTSUS, discussed above, the protestant has asserted classification of numerous of the articles in subheading 8543.89.70, HTSUS (electric luminescent lamps), and subheading 8539.39,00, HTSUS (electrical filament or discharge lamps). We are not satisfied, and we do not believe that any of the subject items are electric luminescent lamps or electrical filament or discharge lamps.

HOLDING:

The following items are classified in subheading 9405.40.80, HTSUS: model RNK 100 (#1 in FACTS section); model SCE 2 (#4); model SDL 2 (#5); model SGC 2 (#7); model SLF 100 (#8); model SLS 101 (#9); model SLS 10 L (#10); model SNL 15 (#12); model SNL 4 (#13); model SNL 6 (#14); model SRN (#17); model SSK 10 (#18); model SSL 5 (#19); and model STL 6 (#20).

Model SNT 20 (#15) is classified in subheading 8518.21.00, HTSUS. Model RNK 690 (#2) and RSE 120 WNL (#3) are classified in subheading 8518.90,80, HTSUS.

Model SFL 2 (#6) is classified in subheading 8512.20.20, HTSUS.

Model SQC 4 (#16) is classified in subheading 8536.69.80, HTSUS.

Model SNC 400 (#11) iin subheading 8543.89.96, HTSUS.

You are instructed to DENY the protest except insofar as reliquidation of any of the subject entries in accordance with this ruling would result in a partial refund of duties to the protestant, e.g., model SFL (#6) is classified herein in a duty-free provision.

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 in accordance with the decision must be accomplished prior to mailing of 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.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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