Pumpkin Lantern

HQ 089158 August 16, 1991 CLA-2 CO:R:C:F 089158 STB CATEGORY: Classification TARIFF NO.: 8513.10.4000 Mr. Joel K. Simon Serko & Simon One World Trade Center Suite 3371 New York, NY 10048 RE: Pumpkin Lantern Dear Mr. Simon: This is in response to your inquiry of April 16, 1991, on behalf of Russ Berrie & Company, Inc., regarding the classification of the "Pumpkin Power" lantern from China. A sample was submitted with your inquiry and is returned to you under separate cover as per your request. FACTS: The subject article, identified as item number 17580, is approximately six inches in height. The item resembles a miniature version of an old railroad lantern, except that where a clear glass globe would normally be, there is, instead, a soft, orange colored plastic globe in the shape of a pumpkin with a jack o' lantern face painted on it. The item is battery operated. The bottom of the lantern can be removed so that batteries can be inserted into a battery compartment. When a switch at the base is turned on, a bulb at the base of the pumpkin lights up. Most of the outer section of the item is of plastic construction. There is, however, a metal carrying handle and a metal ring attached to the top of the lantern. ISSUES: Whether the subject item should be classified as a festive article under heading 9505, Harmonized Tariff Schedule of the United States Annotated (HTSUSA)? If the merchandise is not classified as a festive article, what is the correct classification? -2- LAW AND ANALYSIS: The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order. Heading 9505, HTSUSA, provides, in pertinent part, for "[f]estive, carnival or other entertainment articles." The Explanatory Notes offer guidance in the interpretation of the headings. The Explanatory Note to heading 9505 indicates that the heading covers: (A) Festive, carnival or other entertainment articles which in view of their intended use are generally made of non-durable material. They include: (1) Decorations such as festoons, garlands, Chinese lanterns, etc., as well as various decorative articles made of paper, metal foil, glass fibre, etc., for Christmas trees (e.g., tinsel, stars, icicles), artificial snow, coloured balls, bells, lanterns, etc. Cake and other decorations (e.g., animals, flags) which are traditionally associated with a particular festival are also classified here. Articles classifiable in heading 9505, HTSUSA, tend to have no function other than decoration. The Explanatory Note mentions "lanterns" as an example of festive articles but seems to be speaking in terms of Christmas ornaments and is definitely speaking in terms of decorative lanterns. Heading 9505, HTSUSA, is generally regarded as a use provision. Additional U.S. Rule of Interpretation 1(a) states that: 1. In the absence of special language or context which otherwise requires: (a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind, to which the imported goods belong, and the controlling use is the principal use. -3- Although the instant merchandise displays a Halloween motif, it is basically a portable lamp or lantern. Portable lanterns, as a class or kind of merchandise are not specifically holiday related. They are sold year-round in a wide variety of motifs. The principal use of such merchandise is not to serve as decorative festive articles, but rather to fulfill the utilitarian function of providing light for various purposes. This particular lantern provides light for people, primarily children, to walk with at night. The design of the article, i.e., the metal handle and the metal ring, demonstrates that the lantern is intended to either be carried by an individual, worn by an individual, or hung, even if just temporarily, at a fixed place. Hanging this item could be awkward and would require a string or wire to be tied between two points. While no information has been provided regarding the marketing of this particular item, which can provide a hint as to the expected or intended use, there is evidence in catalogs and stores illustrating the marketing of similar merchandise. For example, in one catalog we noted that a company is advertising a lantern identical in most respects to the subject item. The only difference is that rather than having a soft plastic jack o' lantern, the pictured item possesses a glass bulb with a jack o' lantern painted on the glass. This article is advertised as a "See-curity Lantern" with a 360 degree "safety light." You state in your inquiry that the light from your lantern will be faint and will not be sufficient to provide light for "reading, walking or any other function." We conclude, however, that even assuming arguendo that the light is not sufficient to enable the holder to see at night, it will provide light that will allow others to see the holder and thus provide "safety" and "security" to the user of the light. The correct classification for the subject article is in heading 8513, HTSUSA, the provision for portable electric lamps designed to function by their own source of energy. HOLDING: The lantern known as the "Pumpkin Power" lantern is properly classified in subheading 8513.10.4000, HTSUSA, the provision for portable electric lamps designed to function by their own source -4- of energy (for example, dry batteries, storage batteries, magnetos), other than lighting equipment of heading 8512; parts thereof, lamps, other. The applicable duty rate is 6.9% ad valorem. Sincerely, John Durant, Director