**HQ 966217**

January 14, 2004

**CLA-2 RR:CR:GC** 966217 GOB

**CATEGORY:** Classification

**TARIFF NO.: 9405.92.00**

Port Director

U.S. Customs Service

610 S. Canal Street

Chicago, IL 60607

**RE:** Protest 3901-02-100967; Solar caps; 19 U.S.C. 1625(c)(1);

Delayed effective date

Dear Port Director:

This is our decision regarding Protest 3901-02-100967, filed on behalf
of Intermatic Incorporated ("protestant") concerning the classification,
under the Harmonized Tariff Schedule of the United States ("HTSUS"), of
certain solar caps.

**FACTS:**

The file reflects the following. The 89 entries at issue were filed
between February 11, 1999 and October 22, 2001. The entries were
liquidated between May 10, 2002 and May 24, 2002. The protest was filed
on June 13, 2002.

The subject goods consist of plastic housings with a solar panel and
light emitting diode ("LED").

In NY H88002, the goods were described as follows:

> The articles in question are identified as solar outdoor lights used
> in a garden or around a home. Each solar light is comprised of a solar
> cap component from China and components produced in Mexico. The solar
> cap is made of a solar light panel connected to a light emitting diode
> (LED) mounted in a plastic housing . . . The components manufactured
> in Mexico are produced by molding from plastic material such as
> pellets or chips and include the tiers, coupling, reflector, riser,
> globe and ground stake. The Mexican parts and a solar cap are combined
> in a package for importation into the United States as a complete but
> unassembled solar outdoor light.

**ISSUES:**

What is the classification under the HTSUS of the solar caps?

What is the effect of HQ 965852, which modified NY H88002, on the
subject entries?

**LAW AND ANALYSIS:**

We note initially that the protest was timely filed under the statutory
and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19
CFR 174.12(e)(1).

The protestant makes the following claims: the solar caps are classified
in subheading 8541.40.60, HTSUS; Customs is bound in the subject
liquidations by NY H88002; and the modification of H88002 must be
prospective.

[Classification Issue]{.underline}

Classification under the HTSUS is made in accordance with the General
Rules of Interpretation ("GRI's"). 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 GRI's may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes
("EN's") constitute the official interpretation of the Harmonized System
at the international level. While neither legally binding nor
dispositive, the EN's 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 HTSUS provisions under consideration are as follows:

> 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:
>
> 8541.40.60 Other diodes

\* \* \* \* \* \*

> 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:
>
> Parts:
>
> 9405.92.00 Of plastics

In NY H88002 dated February 27, 2002, Customs classified the subject
solar caps in subheading 8541.40, HTSUS. In HQ 965852 dated December 20,
2002, Customs modified NY H88002, and determined that the subject solar
caps were classified in subheading 9405.92.00, HTSUS. Both HQ 965852 and
NY H88002 were issued to counsel on behalf of the protestant. In HQ
965852, we stated:

> EN 85.41(B) discusses photosensitive semiconductor devices, including
> photovoltaic cells. EN 85.41(B)(2)(i) provides in pertinent part as
> follows:
>
> The heading also covers solar cells, whether or not assembled in
> modules or made up into panels. However the heading **does not cover**
> panels or modules equipped with elements, however simple, (for
> example, diodes to control the direction of the current), which supply
> the power directly to, for example, a motor, an electrolyser
> (**heading 85.01**).
>
> \[All emphasis in original.\]
>
> We find that, when imported into the United States, the subject solar
> caps contain elements other than the photosensitive semiconductor
> devices which are within the scope of the EN exclusion described
> above. The solar caps contain both photosensitive cells and light
> emitting diodes, as well as part of the plastic lamp which contains at
> least the electronic components for connecting the cells and diodes to
> battery housings. [See generally]{.underline} HQ 962957 dated October
> 23, 2000. Therefore, we conclude that they are not classified in
> heading 8541, HTSUS. We find that the solar caps are described in the
> heading text of heading 9405, HTSUS, because they are parts of lamps
> not elsewhere specified or included. Accordingly, we determine that
> the solar caps are classified in subheading 9405.92.00, HTSUS.

Based upon HQ 965852 and the analysis therein, we find that the subject
solar caps are classified in subheading 9405.92.00, HTSUS.

[19 U.S.C. 1625 Issue]{.underline}

The basic chronology at issue is as follows. The subject entries were
filed between February 11, 1999 and October 22, 2001; the goods were
entered under subheading 8541.40.60, HTSUS. On February 27, 2002, the
National Commodity Specialist Division issued NY H88002 which classified
the solar caps in subheading 8541.40, HTSUS. The subject entries were
liquidated between May 10, 2002 and May 24, 2002 under subheading
9405.92.00, HTSUS. On December 20, 2002, Customs issued HQ 965852 which
modified NY H88002 and classified the solar caps in subheading
9405.92.00, HTSUS. HQ 965852 was published in the *Customs Bulletin* on
January 8, 2003, and was stated to be effective for merchandise entered
or withdrawn from warehouse for consumption on or after March 10, 2003.

19 U.S.C. 1625(c)(1) provides as follows:

**(c) Modification and revocation**

A proposed interpretive ruling or decision which would-

> \(1\) modify (other than to correct a clerical error) or revoke a
> prior interpretive ruling or decision which has been in effect for at
> least 60 days; or
>
> \(2\) have the effect of modifying the treatment previously accorded
> by the Customs Service to substantially identical transactions;
>
> shall be published in the Customs Bulletin. The Secretary shall give
> interested parties an opportunity to submit, during not less than the
> 30-day period after the date of such publication, comments on the
> correctness of the proposed ruling or decision. After consideration of
> any comments received, the Secretary shall publish a final ruling or
> decision in the Customs Bulletin within 30 days after the closing of
> the comment period. The final ruling or decision shall become
> effective 60 days after the date of its publication.

19 CFR 177.12(e)(2) provides in pertinent part as follows:

**177.12 Modification or revocation of interpretive rulings \...**

\(e\) *Effective date and application to transactions* --

. . .

> \(2\) *Rulings or decisions in effect for 60 or more days.* If an
> interpretive ruling or holding or principle covered by a protest
> review decision that is modified or revoked under this section had
> been in effect for 60 or more calendar days, the modifying or revoking
> notice will, provided that liquidation of the entry in question has
> not become final, apply to merchandise entered, or withdrawn from
> warehouse for consumption:
>
> \(i\) Sixty calendar days after the date of publication of the final
> modifying or revoking notice in the *Customs Bulletin* under paragraph
> (b)(2) of this section; . . .

19 CFR 177.9(a) provides in pertinent part as follows:

**177.9 Effect of ruling letters.**

> \(a\) *Effect of ruling letters generally.* . . . Generally, a ruling
> letter is effective on the date it is issued and may be applied to all
> entries which are unliquidated, or other transactions with respect to
> which the Customs Service has not taken final action on that date. . .
> .

As indicated above, the entries which are the subject of this protest
were filed between February 11, 1999 and October 22, 2001. HQ 965852 is
effective for merchandise entered or withdrawn from warehouse for
consumption on or after March 10, 2003.

We therefore find that HQ 965852 is not effective with respect to the
subject entries.

Additionally, we find that 19 CFR 177.9(a) is support for the
proposition that NY H88002 controls with respect to the entries at
issue.

**HOLDING:**

The solar caps are classified in subheading 9405.92.00, HTSUS, as:
"Lamps and lighting fittings . . . and parts thereof, not elsewhere
specified or included . . . : Parts: Of plastics."

Based upon our determination with respect to the effective date of HQ
965852, and based upon 19 CFR 177.9(a), the entries at issue should be
liquidated under subheading 8541.40.60, HTSUS. Accordingly, you are
instructed to GRANT the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065,
dated August 4, 1993, Subject: Revised Protest Directive, you are to
mail this decision, together with the Customs Form 19, to the protestant
no later than 60 days from the date of this letter. Any reliquidation of
the entry in accordance with the decision must be accomplished prior to
mailing of the decision. Sixty days from the date of the decision the
Office of Regulations

and Rulings will make the decision available to Customs personnel, and
to the public on the Customs Home Page on the World Wide Web at
www.cbp.gov, by means of the Freedom of Information Act, and other
methods of public distribution.

> Sincerely,

Myles B. Harmon, Director

Commercial Rulings Division