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NY 808329




CLA-2-85:S:N:N3:227 808329

CATEGORY: CLASSIFICATION

TARIFF NO.: 8513.10.2000

Ms. Lynn O'Beirn
Four Star International Trading Co.
3330 East 79th Street
Cleveland, OH 44127

RE: The tariff classification of a Halloween type flashlight from China.

Dear Ms O'Beirn:

In your letter dated March 14, 1995, you requested a tariff classification ruling.

The sample submitted is a plastic flashlight, known as the "Halloween Flashlight," which measures approximately 6 inches long and possesses a plastic "Jack-O'-Lantern" that is inserted over the top portion of the torch light. When the flashlight is activated by its slide switch mechanism, it projects a beam of light through the opening at the top of the "Jack-O'-Lantern."

Since this article will be used with Halloween costumes and for children's trick-or-treating, you believe 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.

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.

Although the "Halloween Flashlight" is packaged with a plastic, pumpkin head that may be attached over the lens, this accessory does not permanently alter the product. The item must qualify as a whole and not merely be designed with a Halloween motif. Further, the instant merchandise is not similar to the articles cited in the Explanatory Notes to heading 9505, (HTS), as examples of traditional, festive articles and must be classified elsewhere.

The subject article, possessing the obvious utilitarian function of a lamp, operates essentially in the same manner as any other functional flashlight which has been defined as a small battery-operated portable electric light, normally held in the hand by the housing itself, whose primary function is to project a beam of light. This fact is supported by its overall design and features which establish a dedication for use as a flashlight rather than a festive article.

The applicable subheading for the "Halloween Flashlight" will be 8513.10.2000, Harmonized Tariff Schedule of the United States (HTS), which provides for portable electric lamps designed to function by their own source of energy...flashlights. The rate of duty will be 22.5 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
Area Director

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