# HQ 965772

September 25, 2002

**CLA-2** RR:CR:GC 965772 KBR

**CATEGORY:** Classification

**TARIFF NO.:** 8513.10.20

Port Director

U.S. Customs Service

1000 Second Avenue\
Suite 2100\
Seattle, WA 98104

**RE:** Protest 3001-02-100138; Rechargeable Emergency Lights

Dear Port Director:

This is our decision on protest 3001-02-100138 filed by counsel on
behalf of Fingerhut Corporation, against your action regarding the
classification, under the Harmonized Tariff Schedule of the United
States (HTSUS), of rechargeable emergency lights. The entries under
protest were liquidated on March 29, 2002, and this protest was timely
filed on May 6, 2002.

**FACTS:**

The product involved in this protest is a pair of rechargeable emergency
lights. Each light is shaped like a typical flashlight: a barrel-like
handle holding the rechargeable nickel-cadmium AA batteries, with a
reflector and krypton light bulb at the end. The illumination from the
light is a directed beam rather than a light for general illumination.
Each light is intended to be plugged into a 120-volt electrical outlet.
The light has a retractable plug which folds into the handle of the
light when disconnected from the electrical outlet. On the opposite side
of the handle from the retractable plug is a "soft glow" night light
panel which operates while the unit is plugged into an electrical
outlet. The article will automatically light if there is a power failure
while the unit is plugged into an electrical outlet. While plugged into
an electrical outlet the directed beam of the light is pointed directly
downward. A fully charged light will operate continuously for
approximately 45 minutes. The protestant claims that the rechargeable
electric light should be classified in subheading 9405.40.80, HTSUS, as
other electric lamps and light fittings, other.

**ISSUE:**

What is the classification under the HTSUS of the rechargeable electric
light?

**LAW AND ANALYSIS:**

Merchandise is classifiable under the Harmonized Tariff Schedule of the
United States (HTSUS) in accordance with the General Rules of
Interpretation (GRIs). The systematic detail of the HTSUS is such that
virtually all goods are classified by application of GRI 1, that is,
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 may then be applied.

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.

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.

The Harmonized Commodity Description And Coding System Explanatory Notes
(ENs) constitute the official interpretation of the Harmonized System.
While not legally binding on the contracting parties, and therefore not
dispositive, the ENs provide a commentary on the scope of each heading
of the Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes the ENs
should always be consulted. *See* T.D. 89‑80, 54 Fed. Reg. 35127, 35128
(Aug. 23, 1989).

We first consider classification within heading 8513, HTSUS, because
classification within heading 9405 is precluded if the article is
classifiable within chapter 85. Legal Note 1(f) to Chapter 94 provides,
in pertinent part, as follows:

1.  \- This Chapter does not cover:

> \* \* \* \* \*
>
> \(f\) Lamps or lighting fittings of Chapter 85

The ENs to heading 8513, HTSUS, provide, in pertinent part:

> This heading covers portable electric lamps designed to function
>
> by means of a self‑contained source of electricity (*e.g.*, dry cell,
>
> accumulator or magneto).
>
> They comprise two elements (*i.e.*, the lamp proper and the source of
> electricity) which are usually mounted and directly connected
> together, often in a single case. In some types, however, these
> elements are separate and are connected by wires.
>
> 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. They usually have a handle or a
> fastening device and may be recognized by their particular shapes and
> their light weight. The term therefore excludes lighting equipment for
> motor vehicles or cycles (heading 85.12), and inspection lamps and the
> like which are connected to a fixed installation (heading 94.05).
>
> The lamps of this heading include:
>
> \(1\) Pocket lamps. Some ("dynamo lamps") are operated by a magneto,
> hand driven by means of a spring‑loaded lever.
>
> \(2\) Other hand lamps (including those with an adjustable beam). Hand
> lamps are often fitted with a simple device for hanging them
> temporarily on a wall, etc., while others are designed so that they
> can be placed on the ground.

Customs has long held that "portability" is an essential characteristic
of "flashlights." The term "flashlight" has been judicially determined
to encompass small, battery‑operated, portable electric lights. *Sanyo
Electric Inc. v. United States*, 496 F.Supp. 1311, *aff'd.,* 642 F.2d
435 (1981). Flashlights have been defined as small, battery operated,
portable electric lights normally held in the hand by the housing. The
primary function of a flashlight is to project a beam of light. *See* HQ
951855, dated July 24, 1993; HQ 084852, dated March 28, 1990; HQ 953262,
dated July 26, 1993; and HQ 962528, dated February 18, 2000. The ENs to
heading 8513, HTSUS (above), list portability as a required
characteristic of articles classified as flashlights.

The rechargeable emergency lights at issue are designed to have a single
use and function: to provide light. The article accomplishes this
function in three ways: as a flashlight, as a security light (*i.e.*, a
light that illuminates automatically during a power outage), and as a
night light. The article is portable (capable of being carried by hand),
lightweight, battery powered (with a feature that automatically
recharges the battery when the article is not in use), and the lighting
element is housed in a single case with the power source - the
rechargeable battery. Thus, the article meets every criterion required
for classification as a flashlight. *See* HQ 962528 (February 18, 2000).

The protestant cites HQ 950671 (February 25, 1992), which found that a
Sanyo rechargeable security light was classified in subheading
9405.40.80, HTSUS, and claims that the instant light should be
classified similarly. However, the instant light is distinguishable from
the Sanyo light in HQ 950761. The Sanyo light was described as:

> The sample submitted is the Sanyo rechargeable security light, model
> no. FL-4026 which measures 2 7/16\" x 3 1/4\" x 1 3/8\" and weighs 5
> ounces. It uses a 2.5 \[volt\] 0.3 \[amp\] bulb, which emits light
> over a small, **[unfocused area]{.underline}**. It has a plastic
> housing and **[a metal plug that cannot be retracted into the
> housing]{.underline}** when the light is held in the hand. This
> security light is capable of use as a "flashlight," night light \[when
> the room is dark the night light automatically turns on when plugged
> into a wall outlet\], or a light that can be used when a power failure
> occurs. It contains a built-in charging unit to recharge its battery.
> It can be left plugged into any 120-volt outlet and it will charge the
> battery when the light is not in use. The storage battery powers the
> light and the electronic circuitry will automatically activate the
> light when the circuit experiences a power outage.
>
> \* \* \* \* \*
>
> While the security light is light weight and is capable of being used
> in the hand, it was not **designed** \[emphasis in original\] for use
> in the hand or on the person.... It may then be removed from the wall
> outlet and, because of its "flat-bottomed" design, placed on a
> nightstand or some other table for use as a night light.

\[Emphasis added.\]

Unlike the Sanyo light in HQ 950671, the instant light is designed for
use in the hand. The instant light has a retractable plug which makes
the light easily portable in the palm of the hand. The plug in the Sanyo
light did not retract making the Sanyo light not easily used for
carrying as a flashlight. The instant light emits a beam of light,
rather than emitting light "over a small, unfocused area" like the Sanyo
light. (*Cf.* *Sanyo*, 496 F. Supp. at 1314, "the aim of a flashlight is
to light up something in the distance, so that the light is focused as
much as possible.") The shape of the body of the instant light and type
of beam of the instant light are not conducive to placing the light on a
table for use in illuminating a general area as was the Sanyo light.
Most electrical sockets in homes and offices are situated at ankle or
calf level and while plugged in, the beam of light is directed downward
which only operates to attract a person to the light. It is reasonable
to conclude that one would, in the event of a power outage, follow the
emanating light to its source and remove the light from the wall socket
in order to maneuver through the darkened home, carrying the light as
one would a flashlight. The Sanyo light was a box with the light
emanating from the front, sides and top so that the light could be left
in the electrical outlet and illuminate the general area.

The protestant argues that the short duration time of the charge while
the instant flashlight is in use, 45 minutes, weighs against classifying
the article as a flashlight. The protestant cites HQ 962528 (February
18, 2000) where a flashlight charge could last for up to 5 ½ hours.
However, Customs has also found that an article is classifiable as a
flashlight with a much shorter charge life. *See* HQ 084852 (March 28,
1990) (the battery charge only lasted for one hour). In fact, Customs
stated in HQ 955356 (May 20, 1994), that "\[t\]he short life of the
\[article\], i.e., the batteries are expected to last only a few hours,
is of no importance. There is no durability requirement for
classification under heading 8513, HTSUS."

Customs stated in HQ 084852 (May 28, 1990) that:

> We note that the power failure warning circuitry and components ...
> add substantially to the cost of the product, and are features which
> distinguish it from a common flashlight. Nevertheless, based on all
> the facts, we must find that the essential character of this item is
> imparted to it by the flashlight features.

In comparing headings 8513 and 9405 for a rechargeable power failure
light, Customs stated in HQ 962528 (February 18, 2000) that:

> The fact that it is manufactured to function during a power outage is
> an added feature; the article is readily available year round for use
> as a flashlight. We find that the principal function of the Coleman
> light is that of a hand-held, battery-powered, portable source of
> light -- a flashlight. The article is classifiable within heading
> 8513. Therefore, classification within heading 9405 is precluded.

This determination is consistent with several prior rulings: HQ 088993,
dated July 29, 1991, in which a battery operated, portable filament lamp
was classified in subheading 8513.10.20, HTSUS; HQ 084852, dated March
28, 1990, in which rechargeable emergency lights were classified as
flashlights; HQ 082594, dated May 3, 1989, in which an emergency power
failure light was classified in subheading 8513.10.20, HTSUS.

In the instant case, we find that as in HQ 962528, above, the principal
function of the rechargeable emergency light is that of a hand-held,
battery-powered, portable source of light -- a flashlight. Therefore,
classification in heading 9405 is precluded pursuant to Note 1(f) of
chapter 94. Therefore, we find that, pursuant to GRI 1 the rechargeable
emergency light is classified in subheading 8513.10.20, HTSUS, as
portable electric lamps designed to function by their own source of
energy, lamps, flashlights.

**HOLDING:**

In accordance with the above discussion, the rechargeable emergency
light is classified in subheading 8513.10.20, HTSUS, as portable
electric lamps designed to function by their own source of energy,
lamps, flashlights.

The protest should be **DENIED**. 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 or entries in
accordance with the decision must be accomplished prior to mailing 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.customs.gov](http://www.customs.gov/), by means of the Freedom of
Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director

Commercial Rulings Division