HQ 952559

March 3, 1993

CLA-2 CO:R:C:M 952559 DFC

CATEGORY: Classification

TARIFF NO.: 8513.10.20

Area Director of Customs

U.S. Customs Service

6 World Trade Center

New York, New York 10048

RE: Protest 1001-92-101902; Lamp, clip; Flashlights;

Subheading 9018.90.80; EN 85.13; Chapter 90, Note 1(g);

GRIs 2(a) and 3(b); All Channel Products; Quon Quon

Company; E. Green & Son (New York), Inc.; Additional U.S.

Rule of Interpretation 1(a); HRLs 084852 and 950001

Dear Ms. Maguire:

This is in response to the Application for Further Review of

Protest no. 1001-92-101902, dated March 13, 1992, covering a

shipment of portable electric lamps manufactured in Germany. A

sample was submitted for examination.

FACTS:

The merchandise is a plastic battery operated, portable

electric lamp known as a clip lamp. It is rectangular in shape

and measures approximately 3-1/2 inches in length, 1-1/4 inches

in width and 1/2 inch in thickness. An advertisement is printed

on the plastic housing for a dermatological cream. The clip lamp

consists of a filament bulb, an on-and-off switch, and a built-

in clip 2 inches in length and 1-1/4 inch in width. According to

the protestant, the built-in clip is designed to hold a wood

tongue depressor for oral examinations. Ten individually wrapped

wood tongue depressors are purchased domestically and distributed

with the clip lamp to dermatologists to promote recognition and

use of the dermatological cream.

The entry covering this merchandise was liquidated under

subheading 8513.10.20, Harmonized Tariff Schedule of the United

States (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, lamps, flashlights. The applicable rate of duty

for this provision is 25% ad valorem.

-2-

Protestant claims that this merchandise is properly

classifiable under subheading 9018.90.80, HTSUS, as instruments

and appliances used in medical, surgical, dental or veterinary

sciences, including scintigraphic apparatus, other electro-

medical apparatus and sight-testing instruments; parts and

accessories thereof, other instruments and appliances and parts

and accessories thereof, other, other. The applicable rate of

duty for this provision is 7.9% ad valorem.

ISSUE:

Whether the clip lamps are classifiable under subheading

8513.10.20, HTSUS, as flashlights or under subheading

9018.90.80, HTSUS, as other medical instruments and appliances.

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the

General Rules of Interpretation (GRIs). GRI 1 provides that

\"classification shall be determined according to the terms of

the headings and any relative section or chapter notes, and,

provided such headings or notes do not otherwise require,

according to \[the remaining GRIs taken in order\]\" In other

words, classification is governed first by the terms of the

headings of the tariff and any relative section or chapter notes.

Protestant claims that the article is \"more than\" a portable

electric lamp. In support of this position he cites the case of

E. Green & Son (New York), Inc. v. United States, 64 Cust. Ct.

241, C.D. 3985 (1970), which held that if an article is \"more

than\" the article provided for in a particular tariff provision,

it is necessary to ascertain the common meaning of the provision

and compare it with the merchandise in question. Protestant

argues that the article\'s exclusive function to hold the

depressor causes it to become an examination device which makes

it \"more than\" a portable electric lamp.

Protestant also cites the case of All Channel Products v.

United States, 1 CIT 128 (1981), as support for the position that

the special grooved and dimensional tooling of the clip lamp to

accommodate the wood tongue depressors for medical examinations

would preclude classification as portable electric lamps. In

further support of his position protestant cites the case of

United States v. Quon Quon Company, 46 CCPA 70, C.A.D. 699

(1959), which held that the use of an article is important even

though an eo nomine provision is involved. Following the court\'s

rationale protestant asserts that the use of the clip lamp as an

instrument in dermatological examinations of the oral cavity

mandates its classification under heading 9018, HTSUS.

-3-

The protestant\'s arguments set forth above suggest that the

clip lamp is a composite good. The classification of composite

goods is governed by GRI 3(b), HTSUS, which reads as follows:

3\. When by application of rule 2(b) or for any other

reason, goods are, prima facie, classifiable under two

or more headings, classification shall be effected as

follows:

\(b\) Mixtures, composite goods consisting of different

materials or made up of different components, . .

which cannot be classified by reference to 3(a),

shall be classified as if they consisted of the

material or component which gives them their

essential character, insofar as this criterion is

applicable.

The Harmonized Commodity Description and Coding System

Explanatory Notes to the HTSUS (EN), although not dispositive,

should be looked to for the proper interpretation of the HTSUS.

SEE 54 FR 35128 (August 23, 1989). EN (IX) to GRI 3(b), at page

4, reads as follows:

\(IX\) For the purposes of this Rule, composite goods made up

of different components shall be taken to mean not only

those in which the components are attached to each

other to form a practically inseparable whole but also

those with separable components, provided these

components are adapted one to the other and are

mutually complementary and that together they form a

whole which would not normally be offered for sale in

separate parts.

Composite goods are classifiable as if they consisted of the

component which gives them their essential character. EN VIII to

GRI 3(b), at page 4, reads as follows:

\(VIII\) The factor which determines essential character

will vary as between different kids of goods. It

may, for example, be determined by the nature of

the materials or component, its bulk, quantity,

weight or value, or by the role of a constituent

material in relation to the use of the goods.

-4-

It is our observation that the essential character of the

article is derived from the flashlight. Our reason for this

conclusion is that the primary function of the clip lamp is to

provide light. The function of the clip as a holder for a wooden

tongue depressor is secondary to its function as a flashlight.

Furthermore, we note that the clip portion of the article is

suitable for attaching the clip lamp to one\'s belt or pocket. It

is most likely that this function is the principal function of

the clip even though it may also be suitable for holding the

tongue depressor.

Note 1(g) to Chapter 90, HTSUS, reads as follows:

1\. This chapter does not cover:

\(g\) Searchlights or spotlights of a kind used for cycles or

motor vehicles (heading No. 85.12); portable electric

lamps of heading no. 85.13 . . . . (Emphasis added.)

EN 85.13 reads, in pertinent part at page 1351, as follows:

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).

\* \* \*

The lamps of this heading include:

\* \* \*

\(6\) Fancy torches in the shape of pistols, pens, etc.

Composite articles composed of a lamp or torch and

a pen, screwdriver, key ring, etc., remain

classified here only if the main function of the

whole is the provision of light.

It is our view that the clip lamp falls within the above

cited portion of EN 85.13 in that the main function is the

provision of light. Thus, it is precluded from classification

under Chapter 90, HTSUS.

Finally, we are not persuaded that the built-in clip of the

clip lamp which accommodates the wood tongue depressors should

preclude classification under heading 8513, HTSUS. It is our

opinion that the clip lamp is not similar to instruments and

appliances used in the medical profession. It is our

understanding as stated previously that the principal use of this

article would be as a flashlight with a pocket clip. See

Additional U.S. Rule of Interpretation 1(a), HTSUS.

-5-

Protestant maintains that the clip lamp has the essential

character of the complete or finished article by virtue of GRI

2(a), HTSUS. He contends that the clip lamp as imported is a

lighting device which holds a wood tongue depressor and that it

is specially designed for use by physicians in the performance of

oral examinations.

GRI 2(a) is not applicable here. The clip lamp as imported

is a complete or finished article. The essential character of

the clip lamp is that of a flashlight The built-in clip does

not preclude classification of the clip lamp as a portable

electric lamp because it can be held in the hand or clipped to a

pocket or belt. The article\'s primary function is as a source

of illumination, not to hold wood tongue depressors.

Customs has defined flashlights as small battery operated

portable electric lights normally held in the hand by the housing

itself, the primary function of which is to project a beam of

light. See, Headquarters Ruling Letter (HRL) 084852 dated March

28, 1990, and HRL 950001 dated September 11, 1991. The clip lamp

meets this definition of a flashlight under subheading

8513.10.20, HTSUS, because it projects a beam of light, is

battery operated and will be held in the hand by its housing.

It is our position that the clip lamp is dutiable at the

rate of 25% ad valorem under subheading 8513.10.20, HTSUS, as

flashlights.

HOLDING:

The protest should be denied. A copy of the decision should

be attached to the Customs Form 19 and provided to the protestant

as part of the notice of action on the protest.

Sincerely,

John Durant, Director

Commercial Rulings Division