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HQ H003214




October 10, 2007

CLA-2 OT:RR:CTF:TCM H003214 ADK

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.40.80

Troy Crago
Atico International USA, Inc.
501 South Andrews Avenue
Ft. Lauderdale, FL 33301

RE: Classification of the Electric Tea Light Lamps from China; Revocation of New York Ruling Letter (NY) L87499, dated October 3, 2005.

Dear Mr. Crago:

On October 3, 2005, the Bureau of Customs and Border Protection (CBP), National Commodity Specialist Division (NCSD), issued New York Ruling Letter (NY) L87499, in which your electric tea light lamp was classified as a “portable electric lamp” under subheading 8513.10.4000 of the Harmonized Tariff Schedule United States Annotated (HTSUSA). We have since reviewed NY L87499, and find it to be in error.

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 revocation was published on July 5, 2007, in the Customs Bulletin, Volume 41, No. 28. One comment in support of the proposed revocation was received in response to this notice.

FACTS:

The subject merchandise, item number W089GA00002, is a battery operated Light Emitting Diode (LED) lamp in the form of a tea light candle. It features a push-button light switch that, when activated, lights a faux flame.

ISSUE:

What is the proper classification under the Harmonized Tariff Schedule of the United States (HTSUS) for the electric candle light lamp?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order. The HTSUS provisions under consideration are as follows:

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:

Other

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 permanently fixed light source, and parts thereof not elsewhere specified or included:

9405.40 Other electric lamps and lighting fittings:

9405.40.80 Other

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs 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 relevant ENs are as follows:

The EN to heading 8513, HTSUS (EN 8513), provides, in pertinent part:

The term “portable lamps” refers only to those lamps (i.e., both the lamp and its electricity supply) which are designed for use when carried in the hand or on the person, or are designed to be attached to a portable article or object. They usually have a handle or a fastening device and may be recognized by their particular shapes and their light weight. (Emphasis in original)

The EN to heading 9405, HTSUS (EN 9405), provides, in pertinent part:

Lamps and Light Fittings Not Elsewhere Specified or Included

(5) Portable lamp (other than those of heading 85.13), e.g., hurricane lamps; stable lamps; hand lanterns; miners’ lamps; quarrymen’s lamps. (Emphasis in original)

It is undisputed that the subject article is a lamp within the meaning of both headings 8513 and 9405, HTSUS. In NY L87499, CBP determined that the lamp was “portable” as required by heading 8513, HTSUS, and therefore classifiable under subheading 8513.10.4000, HTSUSA. We now find that determination to be in error.

Lamps such as the subject article are classifiable in heading 8513, HTSUS, provided that they are “portable” within the meaning of the terms of the heading. EN 8513, defines “portable” as referring only to those lamps which are “designed for use when carried in the hand or on the person, or are designed to be attached to a portable article or object.” Classification of the subject merchandise, therefore requires a threshold analysis of heading 8513, HTSUS. If designed for use when carried in the hand, i.e. portable, it will be classified under heading 8513, HTSUS. If not, the electric candle lamp is excluded from heading 8513, HTSUS, and classifiable instead under the basket provision for lamps, heading 9405, HTSUS.

“Whether an article is ‘specially designed’ or ‘specially constructed’ for a particular purpose may be determined by an examination of the article itself, its capabilities, as well as its actual use or uses. One must look at both the structural and auxiliary design features, as neither by itself is determinative.” Western States Import v. United States, 20 C.I.T. 736 (1996). In the present matter, we must determine whether the electric tea light lamp has any particular design features that adapt it for the stated purpose of being either carried in the hand or on the person, or being attached to a portable article or object. See Headquarters Ruling Letter (HQ) 965714, November 15, 2002. These design features include, but are not limited to, handles, fastening devices, ergonomic shapes capable of fitting easily into the hand, and use of light weight materials.

Although the subject lamp is lightweight, it does not posses any other design feature to indicate that it is designed for use when carried in the hand or on the person, or is designed to be attached to a portable article or object. The article’s shape is such that it is not easily carried in the hand nor does it have a handle or fastening device. Instead, the article’s design indicates that it is intended for placement on a flat surface such as a table, for an illuminated candlelight effect. As a result, it is excluded from heading 8513, HTSUS and classifiable instead under heading 9405, HTSUS.

One comment was received in response to the publication of the proposed revocation. The comment “fully supports” CBP’s decision to reclassify the subject merchandise under subheading 9405.40.8000, HTSUSA. Specifically, the commenter “agrees that consideration of design featuresthat adapt [a lamp] for a stated purpose and for what use(s) the article is marketed and sold should be significant factors for rendering future decisions vis-à-vis HTS 8513 v. 9504.”

HOLDING:

By application of GRI 1, the electric tea light is classifiable under heading 9405, HTSUS. Specifically, it is classifiable under subheading 9405.40.8000, HTSUSA, 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 permanently fixed light source, and parts thereof not elsewhere specified or included: Other electric lamps and lighting fittings: Other.” The column one, general rate of duty is 3.9 percent ad valorem.

EFFECT ON OTHER RULINGS:

NY L87499, dated October 3, 2005 is hereby revoked. In accordance with 19 USC §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.

Sincerely,

Myles Harmon, Director
Commercial and Trade Facilitation Division

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