HQ 089158: Pumpkin Lantern

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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