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HQ 967437




April 27, 2005

CLA-2-RR:CR:GC 967437

CATEGORY: CLASSIFICATION

Tariff No.: 8527.19.5035

Jack D. Mlawski, Esq.
Galvin & Mlawski
470 Park Avenue South
Suite 200 – South Tower
New York, NY 10016-6819

RE: LED radio lantern; NY L80740, affirmed

Dear Mr. Mlawski:

This is in response to your letter of November 23, 2004, on behalf of Zelco Industries, Inc., concerning the classification of “The Amazing LED Radio Lantern” (LED radio lantern), under the Harmonized Tariff Schedule of the United States (HTSUS). Specifically, you request reconsideration of New York Ruling (NY) L80740, dated November 17, 2004, issued by the Customs and Border Protection (CBP), National Commodity Specialist Division.

FACTS:

The merchandise under consideration is a cylindrical battery-operated portable combination AM/FM radio and lamp. It measures approximately 5” in height and 3” in diameter, and 7” in height when extended. It features a clear plastic top section that incorporates a radio with an on/off volume switch, an AM/FM switch, a tuner switch, and an extensible antenna. The top portion also has an on/off lamp switch that activates several incorporated LED light bulbs. The top portion is capable of being extended upward to expose a clear plastic cylinder area lamp. The item operates both as a radio broadcast receiver and a lamp. The lamp and radio operate independently of one another.

In NY L80740, the LED radio lantern was classified under subheading 8527.19.50, HTSUS, which provides for “[r]eception apparatus for radiotelephony, radiotelegraphy or radiobroadcasting, whether or not combined, in the same housing, with sound recording or reproducing apparatus or a clock: Radiobroadcast receivers capable of operating without an external source of power, including apparatus capable of receiving also radiotelephony or radiotelegraphy: Other: Other.”

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the GRIs. The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 GRIs 2 through 6 may then be applied in order.

The headings under consideration are:

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:

Reception apparatus for radiotelephony, radiotelegraphy or radiobroadcasting, whether or not combined, in the same housing, with sound recording or reproducing apparatus or a clock:

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

You assert that the LED radio lantern is prima facie described under three HTSUS headings, including heading 8543, HTSUS, and that based on General Rule of Interpretation (GRI) 3(c), the LED radio lantern should be classified under the heading appearing last in numerical order, that being heading 8543, HTSUS, which provides for “[e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter.” There is no dispute that the lantern portion of the LED radio lantern is described in heading 8513, HTSUS, and that the radio portion of the LED radio lantern is described in heading 8527, HTSUS.

Headings 8513 and 8527 are in Chapter 85, which is in section XVI of the HTSUS. Note 3 to section XVI, provides as follows:

Unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function.

We find that Note 3 is applicable as the LED radio lantern is described therein as a composite machine designed for the purpose of performing two complementary or alternative functions, and therefore we must determine which component or machine performs the principal function. CBP has previously determined that in a radio/flashlight combination, both the radio and the flashlight play an equal role, and neither function imparts the essential character of the item. See, HQ 952797, dated January 25, 1993, and HQ 952669, dated November 30, 1992. Similarly, in this case, the principal function cannot be determined, as the lantern and radio play an equal role in the LED radio lantern.

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

The ENs to section XVI, paragraph VI pertaining to multi-function machines and composite machines, instruct that where it is not possible to determine the principal function, as provided in note 3, it is necessary to apply GRI 3(c). GRI 3(c), provides that “[w]hen goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.” In this case, because the principal function cannot be determined, we apply GRI 3(c). The heading which occurs last in numerical order among those which equally merit consideration is 8527, HTSUS, which provides for “[r]eception apparatus for radiotelephony, radiotelegraphy or radiobroadcasting, whether or not combined, in the same housing, with sound recording or reproducing apparatus or a clock.”

Heading 8543, HTSUS, is not considered because the classification of the LED radio lantern can be accomplished based on the application of section XVI, note 3, under GRI 1. Heading 8543, HTSUS, is a basket provision, in that it covers merchandise not elsewhere described in the chapter. Classification in such a basket provision “is appropriate only when there is no tariff category that covers the merchandise more specifically.” Apex Universal, Inc. v. United States, 22 C.I.T. 465, 471 (1998). By application of section XVI, note 3, the LED radio lantern is elsewhere described, and we do not reach heading 8543, HTSUS. Heading 8543, HTSUS, would only be considered if the preceding headings were precluded.

We note that in HQ 952669 dated November 30, 1992, HQ 952797, dated January 25, 1993, HQ 958354, dated December 8, 1996 and NY H84874, dated August 16, 2001, the analysis was based solely on GRI 3, and not on GRI 1 and section XVI, note 3. However, the resulting classification is the same as if GRI 1 and section XVI, note 3 had been applied as in the analysis of the instant decision. Because the holdings in HQ 952669, 952797, 958354, and NY H84874 are not changed, the requirements of 19 U.S.C. §1625(c), are not applicable. The analysis set forth in this ruling is the correct analysis which should be applied to merchandise such as that which is the subject of this ruling and the four other referenced rulings, where the components of merchandise are classifiable in Chapter 85, HTSUS.

The LED radio lantern is classified in heading 8527, HTSUS, specifically in subheading 8527.19.50, HTSUS, which provides for “[r]eception apparatus for radiotelephony, radiotelegraphy or radiobroadcasting, whether or not combined, in the same housing, with sound recording or reproducing apparatus or a clock: Radiobroadcast receivers capable of operating without an external source of power, including apparatus capable of receiving also radiotelephony or radiotelegraphy: Other: Other.”

HOLDING:

By application of GRI 1, and Note 3 to Section XVI, the LED radio lantern is classified in heading 8527, as “[r]eception apparatus for radiotelephony, radiotelegraphy or radiobroadcasting, whether or not combined, in the same housing, with sound recording or reproducing apparatus or a clock subheading.” It is specifically provided for in subheading 8527.19.5035, HTSUSA, which provides for “[r]eception apparatus for radiotelephony, radiotelegraphy or radiobroadcasting, whether or not combined, in the same housing, with sound recording or reproducing apparatus or a clock: Radiobroadcast receivers capable of operating without an external source of power, including apparatus capable of receiving also radiotelephony or radiotelegraphy: Other: OtherOther: FM only or AM/FM only,” with a column one, general duty rate of 3% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usits.gov/tata/hts/.

NY L80740, dated November 17, 2004, is affirmed.

Sincerely,

Myles B. Harmon, Director

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