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NY 807513




CLA-2-85:S:N:N3:227 807513

CATEGORY: CLASSIFICATION

TARIFF NO.: 8513.10.4000

Mr. David A. Eisen
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway 43rd floor
New York, NY 10036-8901

RE: The tariff classification of a Halloween type lantern from China and Taiwan.

Dear Mr. Eisen:

In your letter dated March 1, 1995, on behalf of Avon Products, Inc., you requested a tariff classification ruling. Sample is being returned as requested.

The sample submitted is a plastic, portable battery-operated Halloween type lantern, known as the "Halloween Flashlight" (item number PP 130469), that is stated to depict the image of a "Jack-O'-Lantern." This lamp measures approximately 5 inches in length by 3 1/2 inches in height and possesses, at the front of the lantern, a "drop down" cover which represents a "mouth" that is stated to complete the "Jack-O'-Lantern" depiction. Moreover, this "drop down" cover is decorated with dark purple eyes and nose, and a green stem along the top. It is noted that the base of the article is smooth and level so that the item may be placed upright and stationary on a flat surface. When the button located at the top of the "cup-size" carrying handle is slid forward, the "cover lid" pops open and a circular reflector light unit, containing a torch bulb, is activated. It is stated that this light imparts an illuminated "ghoulish"-like "Jack-O'-Lantern" effect.

You claim that this merchandise should be properly classified under subheading 9505.90.60, Harmonized Tariff Schedule of the United States (HTS), which provides for other festive, carnival or other entertainment articles, or alternatively classified under subheading 8513.10.4000, HTS, which provides for other portable electric lamps designed to function by their own source of energy.

The classification, under subheading 9505.90.60, HTS, rests on its apparent satisfaction of the guidelines set for festive articles. In general, merchandise is classifiable in heading 9505, HTS, as a festive article when the article, as a whole:

1) is of non-durable material or, generally, is not purchased because of its extreme worth, or intrinsic value (e.g., paper, cardboard, metal foil, glass fiber, plastic, wood);

2) functions primarily as a decoration (e.g., its primary function is not utilitarian); and

3) is traditionally associated or used with a particular festival (e.g., stockings and tree ornaments for Christmas, decorative eggs for Easter).

An article's satisfaction of these three criteria is indicative of classification as a festive article. The motif of an article is not dispositive of its classification and, consequently, does not transform an item into a festive article.

Despite your above depiction in substantiating this article to be a traditional "Jack-O'-Lantern" for Halloween, this office disagrees with your position. It is stated that illuminating the "mouth" area of the pumpkin provides a "ghoulish" and sinister "Jack-O'-Lantern" effect, however, this is not accomplished by the product. When the lid is up, the light is free flowing without obstruction, but when the lid is down, the light is totally non-functioning. Moreover, simply naming or calling a product "Jack-O'-Lantern" does not automatically qualify that article as festive. The item must qualify as a whole and not merely be designed with a Halloween motif. The instant merchandise is not similar to the articles cited in the Explanatory Notes to 9505, as examples of traditional, festive articles.

In reference to New York Ruling 875247, dated July 8, 1992, it should be noted that by calling an item a "Halloween Flashlight" does not necessarily warrant classification in the lamp provision of heading 8513, HTS. In this instance, the item resembled a penlight in shape but had a whistle attached to one end and on the other end a bulb portion illuminated a pumpkin head. This "safety" feature was not to provide light for the user but simply to serve as a warning light for oncoming motor vehicle traffic. The use of the article in this respect was secondary to the decorative appeal of an illuminated "Jack-O'-Lantern" for youngsters.

In regard to the cited HRL 955095, dated November 30, 1993, the subject article is not similar to the pumpkin-like item described in that ruling since that "Jack-O'-Lantern" component was lacking the capability of being illuminated (a criteron for "Jack-O'-Lanterns" to be considered traditional festive articles for Halloween) and, therefore, was precluded from consideration under heading 9505, HTS.

Further, in noting HRL 951897, dated August 26, 1992, the instant merchandise does not compare to the article described in that ruling which established that a three dimensional "Jack-O'-Lantern," capable of illumination, was traditionally associated with Halloween and, thereby, classifiable under subheading 9505.90.6060, HTS. In that case, a plastic bag took on the form of a "Jack-O'-Lantern" and was illuminated by an interior light bulb. It should be noted that the primary purpose of the article was the decorative feature as opposed to any utilitarian function.

The subject article of this ruling has an obvious utilitarian function since it operates essentially in the same manner as any other functional lamp does. This fact is supported by its overall design and features which establish a dedication for use as a lantern rather than a flashlight

The applicable subheading for the "Halloween lantern," item number PP 130469, will be 8513.10.4000, Harmonized Tariff Schedule of the United States (HTS), which provides for other portable electric lamps designed to function by their own source of energy. The rate of duty will be 6.2 percent ad valorem.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire

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