The tariff classification of a plastic Halloween candy container from China

N024267 March 28, 2008 CLA-2-39:OT:RR:E:NC:N2:222 CATEGORY: Classification TARIFF NO.: 3924.10.4000; 9817.95.05 Mr. Troy D Crago Atico International USA, Inc. 501 South Andrews Avenue Fort Lauderdale, FL 33301 RE: The tariff classification of a plastic Halloween candy container from China Dear Mr. Crago: In your letter dated March 5, 2008 you requested a tariff classification ruling. The submitted illustration depicts an item identified as a Halloween Candy Holder, item number A079LA00139. This item is made of 100% plastic material. It is designed in the shape of a jack-o-lantern that is orange in color and has an opening and a carry handle on top. It measures 2-1/4” in height, not inclusive of the handle. It is intended for use as a container of individual portions of candy during the Halloween holiday. This item is classifiable in subheading 3924.10.4000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for tableware, kitchenware…of plastics: tableware and kitchenware: other. However, with regard to the applicable rate of duty, this item also meets the terms of subheading 9817.95.05, as it is a utilitarian three-dimensional representation of a symbol that is closely associated with Halloween. Halloween is a recognized holiday. See Park B. Smith Ltd. v. United States, 347 F.3d 922, 929 (CAFC, October 21, 2003). U.S. Note 1 to Chapter 98, HTSUS, states: “The provisions of this chapter are not subject to the rule of relative specificity in general rule of interpretation 3(a). Any article which is described in any provision in this chapter is classifiable in said provision if the conditions and requirements thereof and of any applicable regulations are met.” Pursuant to U.S. Note 1 to Chapter 98, HTSUS, item number A079LA00139 is correctly classified therein. The applicable subheading for item number A079LA00139 will be 9817.95.05, HTSUS, which provides for articles classifiable in subheadings 3924.10…the foregoing meetings the descriptions set forth below: utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated with a specific holiday in the United States. The rate of duty will be free. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Gary Kalus at 646-733-3055. Sincerely, Robert B. Swierupski Director, National Commodity Specialist Division