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HQ W968278

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March 30, 2007

CLA-2 RR:CTF:TCM W968278 ADK

CATEGORY: CLASSIFICATION

TARIFF NO.: 8513.10.40

Mr. Robert Leo
Ms. Barbara Dawley
Meeks & Sheppard
330 Madison Avenue, 39th Floor,
New York, NY 10017

RE: Revocation of Ruling HQ 967976, dated April 20, 2006; Classification of a Dual Function Flashlight/Lantern from China.

Dear Mr. Leo:

This letter is in response to your request of June 20, 2006, on behalf of your client, The Coleman Company Inc. (Coleman), for reconsideration of Headquarters Ruling (HQ) 967976. In that ruling, United States Customs and Border Protection (CBP) determined that The Companion™ Lantern should be classified under subheading 8513.10.20, Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed HQ 967976 and found 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 modification was published on February 14, 2007, in the Customs Bulletin, Volume 41, No. 8. One comment was received in response to this notice.

FACTS:

The subject article, The Companion™ Lantern, model number 5373, is a portable, battery-operated flashlight/lantern measuring approximately 6 ¼ inches high when closed, and 8 inches when extended. It is shaped to resemble a miniature version of a traditional table-top camping lantern. It has a flared, dome-like top with a cylindrical midsection and base. A nylon-wrist lanyard is attached to the top of the article. The housing, or handgrip area, is approximately 6 ¾ inches in circumference and 2 ½ inches in length. A push-button switch, which activates both the flashlight and the lantern, is situated in the housing’s midsection and protrudes approximately 1 inch from the surface. The size and shape of the housing is such that it is difficult to hold comfortably in the hand.

The Companion™ Lantern operates both as a flashlight and as a lantern. When in the flashlight position, the base incorporates a filament light bulb with a reflector and lens and emits a strong, focused beam. When extended, the light bulb is raised into a translucent cylindrical midsection to become an area light. Unlike the flashlight function, the area light emits a weak ray of light which extends over a narrow radius. Both the flashlight and lantern function on 4 “AA” batteries which are included in a separate and visible area of the retail packaging.

Text on retail packaging highlights the machine’s dual function. Coleman describes the product as a “Personal-Size Companion™ Lantern”, a “Retractable Flashlight” and indicates that the product “Converts easily from a flashlight into an area light when extended.” The packaging also shows The Companion™ Lantern emitting light in both its extended and contracted positions.

Pictures of the Companion™ Lantern are shown below. For ease of reference, the item was placed next to a standard 12-inch ruler.

The Companion™ Lantern in a closed position.

The Companion™ Lantern in an open position.

Coleman argues that the Companion™ Lantern functions principally as an area light and should be classified under subheading 8513.10.40, 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: [o]ther.”

ISSUE:

Is the Companion™ Lantern classifiable as a flashlight or other portable lamp under heading 8513, HTSUS?

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. GRI 6 provides that 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 GRIs 1 through 5, on the understanding that only subheadings at the same level are comparable.

There is no dispute that the subject merchandise is classifiable under heading 8513, HTSUS, specifically under subheading 8513.10, HTSUS. The complication arises at the 8-digit level as to whether the flashlight or the area light serves as the article’s principal function. The HTSUS provisions under consideration are as follows:

8513 Portable electric lamps designed to function by their own sources of energy (for example, dry batteries, storage batteries, magnetos), other than lighting equipment of heading 8512; parts thereof:

Lamps:

8513.10.2000 Flashlights

8513.10.4000 Other

Section XVI, Note 3:

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.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. 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.

Section XVI, General Explanatory Note VI:

In general, the multi-function machines are classified according to the principal function of the machine.

Where it is not possible to determine the principal function, and where, as provided in Note 3 to the Section, the context does not otherwise require, it is necessary to apply General Interpretive Rule 3 (c)... GRI 3 (c) provides:

When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs in last numerical order among those which equally merit consideration.

The Companion™ Lantern is a multi function machine designed to perform two complementary or alternative operations. When closed, it is a flashlight, of the kind classifiable under subheading 8513.10.20, HTSUS. When extended, it is an area light, of the kind classifiable under subheading 8513.10.40, HTSUS. As a multi-function machine, it should be classified “as if consisting only of that componentwhich performs the principal function.” Section XVI, Note 3. At issue is whether the flashlight or area light constitutes the principal function. If the principal function cannot be determined, classification will be in accordance with GRI 3(c).

The term “flashlight” has been judicially determined to mean a small, battery-operated, portable electric light, normally held in the hand by the housing. Sanyo Electric Inc. v. United States, 496 F.Supp. 1311, aff’d., 642 F.2d 435 (CAFC 1981). Subsequent CBP rulings have expanded the definition of flashlight to mean a small, battery operated light, held in the hand by the housing, the primary purpose of which is to emit a strong, focused beam of light. See HQ 951855, dated July 24, 1992; HQ 084852, dated March 28, 1990; HQ 953262, dated July 26, 1993. Machines that satisfy this definition are classified under the eo nomine subheading 8513.10.20, HTSUS. Importers seeking to classify their multi-function goods elsewhere must show that the flashlight function is either a subordinate feature, or a coequal feature thus triggering GRI 3 (c). In the present matter, Coleman argues that the flashlight is a subordinate feature, and that the area light serves as the article’s principal function.

Coleman’s principal function argument is three-fold. First, it indicates that the article satisfies the definition of ‘lantern,’ when extended. While we agree that the article meets the definition of ‘lantern’ when extended, these definitions do not assist in the principal function determination. Furthermore, CBP does not dispute that the article can function as a lantern when extended.

Coleman also relies on HQ 952087, dated July 23, 1992, in which CBP classified “floating” lanterns. In that ruling, CBP determined 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.” (Emphasis added). Coleman has interpreted this ruling to mean that any portable lamp with a handle is prima facie excluded from subheading 8513.10.20, HTSUS. This argument overlooks CBP’s use of the word “normally.” In HQ 952087, CBP determined that flashlights are normally, but not always, held entirely in the hand by the housing itself. The presence of a handle alone is insufficient to warrant an alternative classification. Furthermore, Coleman itself markets and sells flashlights which feature molded plastic carrying handles

(1) 4D Water Activated Waterbeam™ Spotlight: http://www.coleman.com/coleman/colemancom/detail.asp?product_id=5338-782&categoryid=1160; (2) Floating 4D Spotlight: http://www.coleman.com/coleman/colemancom/detail.asp?product_id=5338B732&categoryid=1160. These products, the 4D Water Activated Waterbeam™ Spotlight, and the Floating 4D Spotlight, can be held in the hand by the housing, or by the handle.

Finally, Coleman relies on U.S. Additional Rule of Interpretation 1(a) (Rule 1(a)) which provides for classification of goods governed by principal use. According to Rule 1(a), in the absence of special language or context which otherwise requires, such use "is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use." In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind. While Rule 1(a) provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the CIT has provided factors which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind.

The two factors relied upon by counsel are the article’s physical characteristics and the environment of sale. In addition to those identified by counsel, these factors include the (2) expectation of the ultimate purchaser(4) use in the same manner as merchandise which defines the class, (5) economic practicality of so using the import, and (6) recognition in the trade of this use.” See Lennox Collections v. United States, 20 CIT 194, 196 (1996). See also United States v. Carborundum Co., 63 CCPA 98, 102, 536 F.2d 373, 377 (1976), cert. denied, 429 U.S. 979 (1976). We will first consider the Companion™ Lantern’s physical characteristics.

Unlike other multifunction Coleman lights, such as the Floating 4AA Flashlight/Lantern, this particular model is not shaped to be held in the hand by the housing. See HQ W968269, dated January 17, 2007. If the housing were larger, the article would fall within the clearly established precedent that classifies substantially similar multi-function machines as flashlights. See HQ W968269, (The Coleman Floating Lantern, a dual function flashlight/lantern, classified under subheading 8513.10.20, HTSUS), HQ 962528, dated February 18, 2000 (The multifunction Coleman Power Failure light was classified under subheading 8513.10.20, HTSUS); NY R00399, dated June 4 2004 (The Coleman dual function flashlight/lantern, classified under subheading 8513.10.20, HTSUS); HQ 965772, dated September 25, 2002 (The multifunction rechargeable emergency light was classified under subheading 8513.10.20); HQ 953262, dated July 26, 1993 (The Rally Rite Lites designed to fit all hard hats were classified under subheading 8513.10.20, HTSUS); HQ 951855, dated July 24, 1992 (The multifunction Beam-N-Blink light was classified under subheading 8513.10.20, HTSUS). This Companion™ Lantern is distinguishable only because it does not comfortably fit into the average person’s hand. Both the dome-shaped top and the on/off switch which protrudes from the housing, prevent the consumer from maintaining an ergonomic grip. The Companion™ Lantern’s current size and shape, prevent it from functioning principally as a flashlight.

The strength of the light bulb is another physical characteristic indicative of principal function. In HQ 962528, CBP was asked to determine the principal function of a Coleman Power Failure Light. In that ruling, we held that “the dim light emitted upon power failure is insufficient to illuminate a substantial area, a fact that reinforces the conclusion that the article is intended to be used primarily as a flashlight.” (Emphasis added). The same reasoning is applicable to the present matter. When extended, The Companion™ Lantern emits a weak radius of light. Unlike the flashlight which emits a strong, focused beam, the lantern function “is insufficient to illuminate a substantial area.” This supports the conclusion that the lantern does not serve as the principal function.

The expectations of the ultimate purchaser similarly fail to identify a principal function. Based on the other Coleman lighting products put up for retail sale, the ultimate purchaser should reasonably expect to buy this particular Companion™ Lantern as a multi-function machine. According their website, Coleman carries a line of Pack-Away® lights which are single function, retractable lanterns. These small lanterns are designed for compact storage and feature large bulbs which distribute a wide radius of light. A purchaser seeking to buy a compact lantern would likely select such an item because it is both retractable and superior in function to the Companion™ Lantern. Similarly, a purchaser seeking to buy a simple flashlight would likely buy an item which is better suited to being held in the hand. Many Coleman flashlights are marketed as having housings that feature “[e]asy-to-hold rubber grip[s] http://www.coleman.com/coleman/colemancom/detail.asp?product_id=5338-781&categoryid=1160, http://www.coleman.com/coleman/colemancom/detail.asp?product_id=5338C701&categoryid=1185,” “ergonomicgrip handle[s] http://www.coleman.com/coleman/colemancom/detail.asp?product_id=5306-700C&categoryid=1140,” or “[n]o-slip rubber grip[s] http://www.coleman.com/coleman/colemancom/detail.asp?product_id=5338-770&categoryid=1185.” The Companion™ Lantern features no such handle and is not easily held in the hand by the housing.

Finally, the manner of packaging and marketing fails to identify a principal function. Counsel argues that use of the word ‘lantern’ in the trademarked name, the presence of illustrative photographs printed on the article’s packaging, and descriptive language used on the packaging all identify the area light as the principal function.

Coleman’s trademarked name, Companion™ Lantern, is not evidence that the article primarily functions as a lantern. Many of Coleman’s multi-function light machines are given the name The Companion™ Lantern. The Coleman 8D Companion™ Lantern, specifically carries the same trademarked name but is marketed as a “flashlight [which] doubles as an area light. http://www.walmart.com/catalog/product.do?product_id=4722924” Similarly, the Coleman Floating Companion™ Lantern is also trademarked as a lantern but CBP has identified its flashlight mode as the principal function See HQ 968269. The trademarked name “The Companion™ Lantern” is a marketing tool employed by Coleman to sell its products. Inclusion of the word ‘lantern’ in the name itself is not dispositive of principal function.

Counsel also relies on Coleman’s use of the words ‘lantern’ and ‘area light’ more frequently than the word ‘flashlight.’ The packaging describes The Companion™ Lantern as a “retractable flashlight,” a “personal size companion lantern.” The packaging also states that The Companion™ Lantern “converts easily” from a flashlight to an area light. Modern dictionaries define the word “convert” as a process that diverts “from the original or intended use www.dictionary.com; http://www.infoplease.com/ipd/A0386759.html.” According to this definition, The Companion™ Lantern’s original or intended use is a flashlight. This alone, however, is insufficient to warrant classification under subheading 8513.10.20, HTSUS. Without more, The Companion™ Lantern’s principal function cannot be identified only by reference to packaging and advertising.

After applying the Carborundum factors, we find that the principal function cannot be identified. When it is not possible to determine the principal function of an item, classification is made in accordance with GRI 3 (c). The Companion™ Lantern is prima facie classifiable under both subheading 8513.10.20, HTSUS, and subheading 8513.10.40, HTSUS. By application of GRI 3 (c), therefore, the article is classified under subheading 8513.10.40, HTSUS.

Pursuant to 19 U.S.C. §1625(c)), CBP published a proposed notice of revocation of HQ 967976, on February 14, 2007, in the Customs Bulletin, Volume 41, No. 8. After publication, we recognized that the proposed ruling did not address the treatment of the four AA batteries which are sold with the Companion™ Lantern. In HQ 967976, we stated in pertinent part:

The batteries are classifiable in heading 8506, HTSUSa different heading than the light component. The light and batteries meet the GRI 3(b) and attendant EN (X) definition of “goods put up in sets for retail sale.”[W]e must now determine which item imparts the essential character to the set.

The factor which determines essential character may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. GRI 3(b) EN (VIII).

In this case, it is clear that the light component will provide the essential character for the set. Therefore, the Companion™ Lantern, packaged with batteries, is classified in heading 8513 HTSUS

This same reasoning applies even under the new classification. The essential character of the GRI 3(b) set continues to be the light function. As a result, the Companion™ Lantern is classifiable as if it consists only of the flashlight.

One comment, submitted by counsel for Coleman, dated March 2, 2007, was received in response to the publication of the proposed revocation. The comment supports CBP’s decision to reclassify the subject merchandise under subheading 8513.10.40, HTSUS. Nonetheless, the importer objects to CBP’s reliance on HQ W968269. In that ruling, CBP classified the Coleman WaterBeam™ Floating Lantern under subheading 8513.10.20, HTSUS, primarily because of its physical characteristics. See Infra page 6. While we note the objection, CBP believes that the distinguishing factor between the subject merchandise and the WaterBeam™ Flashlight Lantern is the physical construction. Unlike the WaterBeam™ Flashlight Lantern, the Companion™ Lantern cannot easily be held in the hand by the housing. Furthermore, the principal function of the subject merchandise cannot be determined by application of the remaining Carborundum factors.

HOLDING:

By application of GRIs 1, 3(c) and 6, and Section XVI, Note 3, The Companion™ Lantern, model number 5373, is classifiable under subheading 8513.10.40 HTSUS, which provides for: “[p]ortable electric lamps designed to function by their own sources of energy (for example, dry batteries, storage batteries, magnetos), other than lighting equipment of heading 8512; parts thereof: Lamps: Other.” The column one, general rate of duty is 3.9 percent ad valorem.

EFFECT ON OTHER RULINGS:

HQ 967976, dated April 20, 2006, is hereby revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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See also:

• Tariff No.: 8513.10.20 - Flashlights
• Tariff No.: 8513.10.40 - Portable electric lamps designed to function by their own source of energy, other than flashlights