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HQ H011693




December 18, 2007

CLA-2 OT: RR: CTF: TCM H011693 ADK

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.40.8000

Paul Cayton
Howler Brands, LLC
540 Barnum Avenue
4th Floor
Bridgeport, CT 06608

RE: Reconsideration of New York Ruling Letter N010283, dated May 9, 2007

Dear Mr. Cayton:

This letter is in response to your request of May 17, 2007, for reconsideration of New York Ruling Letter (NY) N010283, dated May 9, 2007. In that ruling, Customs and Border Protection (CBP) determined that The Pumpkin Light should be classified under subheading 9405.40.8000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have reviewed NY N010283 and found it to be correct.

FACTS:

The subject article, The Amazing Artificial Candle Pumpkin Light (Pumpkin Light), has a round shaped plastic housing measuring approximately 4 inches in diameter and 1 inch high. It features a clear plastic lens which covers three light emitting diodes (LEDs) in the center of a reflector. The light has a push-button switch and an AC adapter socket. It is powered by three AAA batteries, which are not included, or an optional AC adapter. This light is designed to be placed inside a pumpkin, Jack-O-Lantern, or similar article.

ISSUE:

Is the Pumpkin Light classifiable as a festive article of chapter 95, an LED of heading 8541, HTSUS, or as an electric lamp?

LAW AND ANALYSIS:

Classification under the HTSUSA 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

8541 Diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes; mounted piezoelectric crystals; parts thereof: 8541.40 Photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes:

8541.40.20 Light-emitting diodes (LED’s)

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 a permanently fixed light source, and parts thereof not elsewhere specified or included: 9405.40 Other electric lamps and lighting fittings: 9405.40.80 Other

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other:
9505.90.6000 Other

In addition to the terms of the headings, classification of goods under the HTSUS is governed by any applicable section or chapter notes. Chapter Note 1 (v) to Chapter 95, HTSUS, provides in relevant part: This heading does not cover:
(v) Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material). Note 8 to chapter 85 provides, in pertinent part:

For the purposes of headings 8541 and 8542:

(a) “Diodes, transistors and similar semiconductor devices” are semiconductor devices the operation of which depends on variations in resistivity on the application of an electric field; For classification of the articles defined in this note, headings 8541 and 8542 shall take precedence over any other heading in the Nomenclature, except in the case of heading 8523, which might cover them by reference to, in particular, their function.

Section XVI, of which chapter 85 is a part, provides in pertinent part:

1. This section does not cover:
(p) Articles of chapter 95.

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 EN to heading 8513, HTSUS (EN 85.13), 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 ENs to heading 8541, HTSUS (EN 85.41), provides, in pertinent part:

(C) LIGHT EMITTING DIODES

Light emitting diodes, or electroluminescent diodesare devices which convert electric energy into visible, infra-red or ultra-violet rays. They are used, e.g., for displaying or transmitting data in control systems.

The ENs to Chapter 95, HTSUS, provide in relevant part:

The heading also excludes articles that contain a festive design, decoration, emblem or motif and have a utilitarian function, e.g., tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen.

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

Lamps and Lighting 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)

Pursuant to Note 1(v) to Chapter 95, HTSUS, articles that feature a festive decoration, but have a utilitarian function, are excluded from that chapter. All parties agree that the subject Pumpkin Light is festive in nature. It is produced in orange, a Halloween color, and printed with six small, black Jack O’ Lanterns which are interspersed with the words “Happy Halloween.” At issue is whether the Pumpkin light has a utilitarian function.

The Pumpkin Light is designed to light up Halloween articles such as pumpkins (real or artificial) and luminaries. The Pumpkin Light is advertised as having “3 Super Bright LED’s” which offer a “Super Bright Candle Light Effect!” The Pumpkin Light is sold primarily because it is a strong, effective light, which is not purely decorative in nature. Although festive in nature, the light nonetheless has a utilitarian function. As such, it is excluded from heading 9505, HTSUS.

We will next consider whether the Pumpkin Light is classifiable as a light emitting diode of heading 8541, HTSUS. According to chapter 85, note 8, articles which are classifiable in “headings 8541 and 8542 shall take precedence over any other heading in the Nomenclature.” Heading 8541, HTSUS, provides specifically for individual light-emitting diodes. See Headquarters Ruling Letter (HQ) 965524, dated August 29, 2002 (Classification of laser diodes and laser diode modules under heading 8541, HTSUS, as LEDs). According to CBP administrative precedent, LEDs that have been incorporated into a lamp housing are beyond the scope of heading 8541, HTSUS. Such articles are instead classifiable as complete lamps. See HQ 966401, dated June 29, 2004 and New York Ruling Letter (NY) K85367, dated May 17, 2004. In the present matter, the LED lights are incorporated into the lamp housing. Consistent with HQ 966401, the Pumpkin Light is classifiable as a lamp, not as an individual LED. It is therefore excluded from heading 8541, HTSUS.

We next consider whether the Pumpkin Light is classifiable as an electric lamp of heading 8513, HTSUS, or heading 9405, HTSUS. Generally, lamps 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 Pumpkin Light therefore requires an 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 Pumpkin Light 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 Pumpkin Light 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 light’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 for an illuminated candlelight effect. As a result, it is excluded from heading 8513, HTSUS, and classifiable instead under heading 9405, HTSUS.

HOLDING:

By application of GRI 1, the Pumpkin Light 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 a permanently fixed light source, and parts thereof not elsewhere specified or included: Other electric lamps and lighting fittings: Other.” The general, column one rate of duty is 3.9 percent ad valorem.

Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

EFFECT ON OTHER RULINGS:

NY N010283, dated May 9, 2007, is hereby affirmed.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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