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HQ W968269





January 17, 2007

CLA-02 RR:CTF:TCM W968269 RSD

CATEGORY: CLASSIFICATION

TARIFF NO. 8513.10.20

Barbara Dawley, Esq.
Meeks & Sheppard
1735 Post Road
Suite 4
Fairfield, Connecticut 06824

RE: Reconsideration of HQ 968113; WaterBeam™ Floating Flashlight/Lantern

Dear Ms. Dawley:

This is in reference to your letter dated June 9, 2006, on behalf of the Coleman Company, Inc., requesting reconsideration of HQ 968113, dated April 20, 2006, concerning the classification of the WaterBeam™ Floating Flashlight/Lantern (WaterBeam™) under the Harmonized Tariff Schedule of the United States (HTSUS). On October 5, 2006, a telephone conference was conducted with you and members of my staff.

FACTS:

The article under consideration in HQ 968113 was the WaterBeam™, model number 5338B729. The product was described as a portable, battery operated plastic flashlight that may be adjusted to become an area light. The flashlight/lantern measures approximately 6 ¾ inches high when not extended and 8 ½ inches high when extended. HQ 968113 further specified that when not extended, the article looks like any typical flashlight. It has a base that incorporates a filament light bulb with a reflector and lens and operates as a strong-focused beam. When the flashlight is extended, the light bulb is raised into a clear-translucent cylindrical midsection to become an area light. The top of the WaterBeam™ has a rotating switch to activate the light. Both functions of the article share the same bulb and power source. The light functions on 4 “AA” batteries that are packaged with the WaterBeam™ in a separate and visible portion of the clear plastic blister-pack packaging. The packaging states “2-IN-1 LIGHTING”, “Flashlight doubles as a lantern” and “Flashlight converts to area lantern”.

In HQ 968113, we held that the WaterBeam™ was classified in subheading 8513.10.20, HTSUS, as “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: [l]amps: [f]lashlights.” You contend that the WaterBeam™ is a composite article that has two functions, that of a flashlight and that of an area light. You claim that neither of these two functions is the principal function of the article. Because the WaterBeam™ does not have a principal function, you maintain that both functions, the flashlight and the area light, merit equal consideration in classifying the article. Thus, you further argue that we were incorrect to classify the WaterBeam™ in subheading 8513.10.20 HTSUS. Instead, you maintain that based on GRI 3(c), the device should be classified in subheading 8513.10.40, HTSUS, as other portable electric lamps, because it is the subheading that occurs last in numerical order among those which equally merit consideration.

ISSUE:

Whether the subject WaterBeam™ should be classified in subheading 8513.10.20, HTSUS, as a flashlight or in subheading 8513.10.40, HTSUS, as other portable electric lamps designed to function by their own source of energy.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRIs.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive nor legally binding, facilitate classification by providing 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, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

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:

8513.10.20 Flashlights

8513.10.40 Other.

The merchandise at issue, the WaterBeam™, is a device that resembles a flashlight that can be modified or converted from a functioning flashlight to operate as an area light. There is no disagreement that the WaterBeam™ is a lamp that should classified in subheading 8513.10, HTSUS. The issue that we must consider is how the WaterBeam™ should be classified at the eight-digit level. This means that we must consider whether the WaterBeam™ should be classified in subheading 8513.10.20 as a flashlight or in subheading 8513.10.40, as “Other”. Because the issue arises at the eight-digit level, we must apply GRI 6. GRI 6 provides that "for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and mutatis mutandis, to [rules 1 through 5], on the understanding that only subheadings at the same level are comparable."

In HQ 968113, we cited to the Section XVI, HTSUS, legal notes which state, in pertinent part, the following:

Unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines adapted 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.

5. For the purposes of these Notes, the expression “machine” means any machine, machinery, plant, equipment, apparatus or appliance cited in the headings of chapter 84 or 85.

Here, because it can function both as a flashlight and as an area light, the subject merchandise is a multi-functional machine/composite machine. In a number of rulings CBP applied the definition of the term “flashlights” set forth in Sanyo Electric Inc. v. United States, 496 F.Supp. 1311, aff’d., 642 F.2d 435, (CAFC.1981) that flashlights are small, battery, operated portable electric light normally held in the hand by the housing. See HQ 964495 dated February 12, 2001, HQ 951855 dated July 24, 1992, and HQ 967480 dated June 2, 2005.

You contend that the WaterBeam™ should be classified in accordance with GRI 3(c) in subheading 8513.10.40,HTSUS, as “other” because neither the flashlight nor the lantern portion impart its principal function. GRI 3(c) provides that the article is classified under the heading which occurs last in numerical order among those which equally merit consideration. However, while we agree that the WaterBeam™ can function both as a flashlight and a lantern, for reasons explained below, we find that the article in question does have a principal function.

The courts have provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. In United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (1976) (hereinafter Carborundum), the court, in determining whether an iron-silicon alloy was in fact used for the manufacture of ferrous metals, noted that "[t]he importer must establish that the imported merchandise belongs to a class or kind of merchandise which is commonly used as raw materials in the manufacture of ferrous metals." Consequently, even if the merchandise was not found to be used specifically for the manufacture of ferrous metals, it could still be considered a part of that class or kind of merchandise if it satisfied certain criteria. To establish class or kind, the Carborundum court articulated, and CBP has repeatedly applied, a variety of factors, including: the general physical characteristics of the merchandise; the expectation of the ultimate purchaser; the channels of trade in which the merchandise moves; the environment of sale (accompanying accessories, manner of advertisement and display); and the use of the merchandise. We note that in Lenox Collections v. U.S., 19 CIT 345, 347 (1995) and Kraft, Inc. v. U.S., 16 CIT 483, 489 (1992) the court applied the Carborundum factors to principal use. See also G. Heileman Brewing Co. v. U.S., 14 CIT 614, 620 (1990).

Although application of these factors is often essential to determine class or kind, it is additionally significant to note that not every factor can or should be applied in each instance and that applicability is dependent upon the particular merchandise at issue, as well as the available information.

In the case at hand, we have reviewed a sample of the merchandise and its packaging. Using the sample and its packaging and the other information available regarding the product, we can apply the Carborundum factors listed above. First, we must determine whether the article that is being reconsidered in this case fits the definition of a flashlight that is provided in Sanyo, of a portable electric light that is normally held in the hand by the housing. In reviewing the sample device, we note that it closely resembles a typical flashlight in that has a cylinder that branches into a bell shape base that contains a filament electric light bulb with a reflector and a lens and that it operates with a strong-focused beam. As such, it is undisputed that it is a battery powered portable light. The WaterBeam™ also has a ergonomic design that makes it suitable for holding in the hand. The rubber grip around the housing further leads to the conclusion that the WaterBeam™ is a device that is designed to be held in the hand by the housing. In other words, it has the physical shape and the characteristics of a flashlight.

The fact that device is primarily designed to be used as a flashlight is shown by fact that the sample is immediately identifiable as a flashlight. In contrast, when the device is in its flashlight mode, it is not clearly recognizable that it can be modified to serve as a lantern or an area light. Some instruction must be given in order for a user to be aware that the base and cylinder can be pulled apart to engage the lantern mode. The fact that the WaterBeam™ is packaged in the blister pack in the lantern mode shows that the lantern function of the device would not be readily discernable to potential purchasers.

The packaging for the WaterBeam™ states “Flashlight converts to area lantern” and “Flashlight double as a lantern”. The website http://www.infoplease.com/ipd/A0386759.html provides that the following definition for the word convert:
to turn to another or a particular use or purpose; divert from the original or intended use: They converted the study into a nursery for the baby.

Consequently, the use of the word “convert” in the phrase “Flashlight converts to area light” on the packaging, seems to be indicative that the original or intended use of the Waterbeam™ is as a flashlight rather than as lantern.

We find it significant that the light emitted when the WaterBeam™ is used as a flashlight is far greater than the light emitted when it is used as a lantern. In fact, we note the amount of light emitted as a lantern is fairly minimal, meaning that it is not be very effective for use as a lantern. In HQ 962528, dated February 18, 2000, CBP considered the classification of the “Coleman Power Failure Light,” a rechargeable light. The device had a dual function as a flashlight and a power failure light. We pointed out in the ruling that the dim light emitted upon power failure was insufficient to illuminate a substantial area reinforced the conclusion that the ultimate purchaser’s expectation was that the product was intended to be used primarily as a flashlight. The fact that it was manufactured to function during a power outrage was an added feature; the article was readily available year round for use as a flashlight. Consequently, we determined that the principal function of the article was that of a hand-held battery-powered portable of source light. Similarly with regards to the WaterBeam™, we note that the product can function effectively as a flashlight, but will provide very little illumination when used as a lantern. Therefore, we believe that the weak nature of the light that the lantern emits compared to light emitted in the flashlight mode indicates that consumers are not likely to purchase the product with the expectation of using it primarily as a lantern. Rather, we believe that purchasers would buy the product primarily for use as a flashlight. The weak nature of the area light’s illumination indicates that the lantern function is only a secondary feature of the product. In other words, the lantern feature of the WaterBeam™ is basically an enhancement of a flashlight. The lantern feature could help to induce consumers to choose to purchase the WaterBeam™ over other flashlights, but it does not provide the principal function of the device. We also note that in reviewing Coleman’s website, the WaterBeam™ is listed under the flashlight section rather than under the lantern section. This further supports the conclusion that the product is intended primarily for use as a flashlight rather than as a lantern.

As we pointed out in HQ 968113, Customs and Border Protection (“CBP”) has previously ruled that for other similar multi-purpose lights, the flashlight feature determined the principal function of the article and that such lights have been classified in subheading 8513.10.2000, HTSUSA. See HQ 967450 (May 9, 2005), HQ 964495 (February 12, 2001), HQ 967480 (June 2, 2005), NY 804092 (December 13, 1994), NY K87841 (June 27, 2004), NY R00399 (June 2, 2004) (concerning another Coleman flashlight/lantern), and NY I84814 (August 16, 2002).

We do not believe that the rulings that you cite, HQ 952797, January 25, 1993, and HQ 967437 dated April 27, 2005, involving a radio/flashlight is analogous to the WaterBeam™ flashlight/lantern that is under consideration in this case. In those cases, CBP determined that in a radio/flashlight combination, both the radio and the flashlight played an equal role, and neither function imparted the essential character of the item. However, unlike the radio/flashlight, in the case of the WaterBeam™, we do not believe that the lantern feature and the flashlight function play an equal role regarding how the device is used. Here, the fact that the light emitted by the lantern is so much weaker as compared to light given off by the flashlight indicates that the flashlight provides the principal function of the device. In view of this factor and the other criteria already mentioned, we conclude that the flashlight element performs the principal function of the product, while the lantern function is a secondary feature. Therefore, classification of the WaterBeam™ cannot be based upon GRI 3(c). Rather, we find that in accordance with Section XVI Legal Note 3, the classification of the WaterBeam is based on the flashlight element, the component that performs the principal function of the machine. Therefore, we affirm that the WaterBeam™ is classified in subheading 8513.10.20, HTSUS, as “[p]ortable electric lamps designed to functions by their own source of energyother than lighting equipment of heading 8512; parts thereof; [l]amps: [f]lashlights.”

HOLDING:

HQ 968113 is affirmed. Pursuant to GRI 1 and Section XVI Note 3, WaterBeam™ is classified in 8513 HTSUS and specifically in subheading 8513.10.20, HTSUS as "[p]ortable 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: [l]amps: [f]lashlights." The 2006 column one general rate of duty is 12.5% ad valorum.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.

Sincerely,

Myles B. Harmon, Director

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