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HQ 955356




May 20, 1994
CLA-2 CO:R:C:M 955356 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8513.10.20

Joel K. Simon, Esq.
Serko & Simon
One World Trade Center
Suite 3371
New York, New York 10048

RE: Lazer Pop handles; GRI 1; EN 85.13; flashlight; 8513.10.40; other portable electric lamps; 9405.60.60; other illuminated signs; EN 94.05; Note 1(f), Chapter 94; other toys; 9503.90.60; EN 95.03; designed for the amusement of children or adults; HRL 951855, 084852, 953262; NY 865371, 867311, 881578, 865853 and 862653

Dear Mr. Simon:

This is in response to your letter dated November 8, 1993, on behalf of Cap Toys, Inc., requesting the tariff classification of "Lazer Pop" handles under the Harmonized Tariff Schedule of the United States (HTSUS). Samples were submitted for examination. Arguments made at a meeting on March 30, 1994, and an additional submission dated April 5, 1994, were considered for this decision.

FACTS:

The "Lazer Pop" handles are battery-operated disposable portable lights. The "Lazer Pop" handle is made of plastic which is cylindrical in shape, approximately 4 inches in length and 7/8 of an inch in diameter. The "Lazer Pop" plastic handle contains a filament bulb, a clear lens, two non-replaceable batteries and a switch. The switch must be depressed at all times to turn on the light. After importation, a candy lollypop is attached to the imported light.

ISSUE:

What is the tariff classification of the "Lazer Pop" handles under the HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...." The competing subheadings are as follows:

8513.10 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...Lamps...

8513.10.20 Flashlights.

8513.10.40 Other.

9405.60.60 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...Illuminated signs, illuminated nameplates and the like...Other.

9503.90.60 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; and accessories thereof...Other...Other...Other toys (except models), not having a spring mechanism.

In understanding the language of the headings of the HTSUS, the Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes (ENs) may be utilized. The ENs, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). EN 85.13 (pgs. 1350-1351) states that heading 8513, HTSUS, 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 (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...(emphasis in original).

Flashlights have been defined as small battery operated portable electric lights normally held in the hand by the housing. A flashlight's primary function is to project a beam of light. See, Headquarters Ruling Letter (HRL) 951855 dated July 24, 1993, HRL 084852 dated March 28, 1990, HRL 953262 dated July 26, 1993.

The "Lazer Pop" handles meet this definition; they are small battery operated portable electric lamps which are held in the hand by the light housing. Moreover, the "Lazer Pop" handles function is to project a beam of light. As imported, the beam of light is projected out into the surrounding space. After the hard candy is attached, the light is projected out and through the hard candy. The short life of the "Lazer Pop" handle, i.e., batteries are expected to last only a few hours, is of no importance. There is no durability requirement for classification under heading 8513, HTSUS. Based on the information presented, we are of the opinion that the "Lazer Pop" handles are classified under subheading 8513.10.20, HTSUS, as flashlights.

You contend that the "Lazer Pop" handles are properly classified as other portable electric lamps under subheading 8513.10.40, HTSUS. As evidence, you cite numerous rulings which classify various lighting devices as other portable electric lamps under this tariff provision. Cited are New York Ruling (NY) 865371 dated August 9, 1991, which classified an electric candle; NY 867311 dated October 18, 1991, which classified a clip-on flexible light; NY 881578 dated January 19, 1993, which classified a small, square-shape, plastic battery-operated light, known as a "Purselight" designed to be "Velcro" attached to the interior of a purse; and NY 865853 dated August 19, 1991, which classified a battery operated clip-on map light in a plastic housing.

We do not believe that any of these rulings are applicable. Each of the above articles was classified under subheading 8513.10.40, HTSUS, as other portable electric lamps because they did not meet the flashlight definition. Neither, the electric candle, clip-on lights, nor the "Purselight" were designed or used as a hand held lighting device. However, the "Lazer Pop" handles are designed and used as a lighting device carried in the hand. Therefore, as stated above, the "Lazer Pop" handles meet the flashlight definition and, therefore, are classified under subheading 8513.10.20, HTSUS.

In your original request, you state that the "Lazer Pop" handles are classifiable under subheading 9405.60.60, HTSUS, as other illuminated signs, illuminated nameplates and the like. Although no arguments were submitted to support this contention, other than a statement that the "Lazer Pop" handles illuminate the hard candy which is attached after importation, we will address this proposed classification.

EN 94.05 (pg. 1581) states that "[t]his group covers advertising lamps, signs, illuminated name-plates (including road signs) and like articles such as advertising plates and address plates, of any material, provided that they have a permanently fixed light source." We are of the opinion that classification under subheading 9405.60.60, HTSUS, as other illuminated signs, illuminated nameplates and the like, is inappropriate. The "Lazer Pop" handles are not in any way similar to the exemplars described in EN 94.05. The "Lazer Pop" handles are not of the class or kind of illuminated signs, illuminated nameplates and the like classifiable under subheading 9405.60.60, HTSUS.

Moreover, Note 1(f), Chapter 94, HTSUS, states that Chapter 94, HTSUS, does not cover:

Lamps and lighting fittings of chapter 85.

Therefore, as the "Lazer Pop" handles are classified under subheading 8513.10.20, HTSUS, as flashlights, they are excluded from classification within Chapter 94, HTSUS.

Additionally, you state that an alternative classification under subheading 9503.90.60, HTSUS, as other toys (except models), not having a spring mechanism, is appropriate. As evidence, you cite to NY 862653 dated May 16, 1991, which classified a toy flashlight packaged with two Disney character faces under heading 9503, HTSUS, as a toy rather than a flashlight. The toy flashlight was designed to allow children to flash shadows of the attached Disney character faces against a wall in a dark room.

EN 95.03 (pgs. 1587-1589) states that:

Collections of articles, the individual items of which if presented separately would be classified in other headings in the Nomenclature, are classified in this Chapter when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets).

Toys classifiable in Chapter 95, HTSUS, are "designed for the amusement of children or adults." General EN to Chapter 95. The purpose of the flashlight in NY 862653 was to create the shadow images. The flashlight was "put up in a manner indicating its use as a toy." Therefore, it was not classified as a flashlight.

We are of the opinion that the "Lazer Pop" handles are not classifiable as toys under subheading 9503.90.60, HTSUS. In its imported condition, the "Lazer Pop" handles are designed to emit light and are not designed to amuse. Therefore, classification as a toy is inappropriate.

You informed this office that entries of the "Lazer Pop" handles have been made at the ports of Los Angeles, Cleveland and Seattle and that protests of those entries are pending in Los Angeles and Cleveland. By copy of this ruling, we are instructing Customs personnel to administer the protests and any future entries of the "Lazer Pop" handles in accordance with this ruling.

HOLDING:

The "Lazer Pop" handles are classified under subheading 8513.10.20, HTSUS, as flashlights, dutiable at the Column 1 rate of 25 percent ad valorem.

Sincerely,

John Durant, Director Commercial Rulings Division


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