The tariff classification and marking of a flashlight and skull head cover from China.

NY 806522 February 23, 1995 CLA-2-85:S:N:N3:227 806522 CATEGORY: Classification TARIFF NO.: 8513.10.2000; 3926.40.0000 Mr. Samuel Zekser, D.E. Sobel Shipping Co., Inc. 170 Broadway Suite 1501 New York, NY 10038-4184 Re: The tariff classification and marking of a flashlight and skull head cover from China. Dear Mr. Zekser: In your letter dated January 30, 1995, on behalf of Hall Associates, Inc., you requested a tariff classification and marking ruling. The samples submitted, individually sealed in plastic bags at the time of importation, consist of the following plastic articles: a) a small, battery-operated lamp (flashlight), measuring about 5 1/4 inches long, which possesses an on/off slide switch mechanism, situated near its top, that activates the light and a metal loop, located at its bottom, for hanging purposes; b) a skull head cover which possesses an open back portion that is designed to fit over a solid object for decorative purposes. It is stated that the skull is designed to be fitted onto the head of the lamp so that the light will shine through the skull. You state that the lamp should not be classified as a flashlight since it does not have a lens which focuses the light into a beam. Further, noting that these items, after importation, will be packaged and sold with a book called "Spooky Stories" for children's use, you claim that this merchandise should be properly classified under subheading 9503.70.0030, Harmonized Tariff Schedule of the United States (HTS), which provides for other toys, put up in sets or outfits, or alternatively classified under subheading 9505.90.6090, HTS, which provides for other festive, carnival or other entertainment articles. Firstly, for a lamp to be a flashlight, it must be considered a small battery-operated electric light, normally held in the hand by the housing itself, whose primary function is to project a beam of light. In this instance, the subject lamp meets the above criteria for qualifying as a flashlight. Moreover, in the condition as imported, the flashlight and skull head cover are not toys designed for amusement purposes. The flashlight is functional as such and may, or may not, be used with the skeleton head cover with which it is imported. Further, in regard to alternatively classifying the merchandise in the festive provision, it has been determined that this merchandise does not function primarily as a decoration nor is it traditionally associated with Halloween, noting that the motif of an item does not transform it into a festive article. The applicable subheading for the 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 duty rate will be 22.5 percent ad valorem. The applicable subheading for the plastic skull head cover will be 3926.40.0000, HTS, which provides for statuettes and other ornamental articles of plastics. The rate of duty will be 5.3 percent ad valorem. You also inquire as to whether this merchandise is properly marked with the use of the paper sticker, indicating "Made in China," affixed to the sealed plastic bags, noting that the individual articles themselves are not marked. The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Since the flashlight and skull head cover, which are not individually marked, will be removed from their sealed plastic bags and then repackaged with the book, "Spooky Stories," the ultimate purchaser will not be cognizant of their country of origin. Therefore, for this merchandise to be considered properly marked, both of these items should be marked in accordance with the above regulation. 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 New York Seaport