CLA-2 CO:R:C:M 955356 KCC
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