The tariff classification of two candy holders from China

N081107 November 4, 2009 CLA-2-63:OT:RR:NC:TA:351 CATEGORY: Classification TARIFF NO.: 6307.90.9889, 9817.95.05 Ellen M. Dano Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP 399 Park Avenue, 25th Floor New York, NY 10022-4877 RE: The tariff classification of two candy holders from China Dear Ms. Dano: In your letter dated October 16, 2009, you requested a tariff classification ruling on behalf of your client, Dan Dee International Ltd. The submitted sample, Item #H007735, is a pumpkin-shaped basket measuring approximately 6.5” in diameter. The exterior surface of the two candy holders is orange and constructed of 100% polyester fabric. The basket is 4.5” tall and the opening at the top of the basket is approximately 5” in diameter, with a plastic handle covered in fabric. Two leaves constructed of polyester fabric are attached to the opening. The basket has five panels giving it the general shape of a pumpkin. One panel is ornamented with eyes and a mouth giving the pumpkin basket a face. There is also a version of Item #H007735 without a handle. The applicable subheading for the two candy holders will be 6307.90.9889, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other made up textile articles, other. The rate of duty will be 7% ad valorem. The two candy holders are utilitarian three-dimensional representations of symbols that are closely associated with Halloween. They are designed, marketed and sold during and in celebration of Halloween. Halloween is a recognized holiday. See Park B. Smith Ltd. v. United States, 347 F.3d 922, 929 (CAFC, October 21, 2003). However, utilitarian articles are excluded from classification under heading 9505, HTSUS, per note (1) (v) to Chapter 95. Although excluded from heading 9505, utilitarian articles in the form of three-dimensional representations of symbols clearly associated with a specific holiday in the United States are eligible for duty-free treatment in special provision 9817.95.05, HTSUS, if they fall within the specifically enumerated tariff numbers cited in the terms of the subheading. Subheading 6307.90 is one of the specifically cited tariff numbers eligible for duty free treatment. Pursuant to U.S. Note 1 to Chapter 98, HTSUS, the applicable secondary subheading for the two candy holders, Item #H007735, will be 9817.95.05, HTSUS, which provides for “Articles classifiable in subheadings… 6307.90…the foregoing meetings the descriptions set forth below: Utilitarian articles in the form of a three 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/. The sample will be returned as requested. 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 Mitchel Bayer at (646) 733-3102. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division