The tariff classification of a Novelty Halloween Toy from China

N240239 April 18, 2013 CLA-2-95:OT:RR:NC:N4:424 CATEGORY: Classification TARIFF NO.: 9503.00.0073 Ms. Lorianne Aldinger Rite Aid Pharmacy P.O. Box 3165 Harrisburg, PA 17105 RE: The tariff classification of a Novelty Halloween Toy from China Dear Ms. Aldinger: In your letter dated March 29, 2013, you requested a tariff classification ruling. A sample of the toy identified as a “Flashing Baton 14 inch,” Rite Aid item # 9016898, was received with your inquiry. It is being imported in two styles: orange pumpkin and purple bat. This office has received the latter style. The item consists of a 14” foam stick covered in a translucent purple plastic wrap, with printed images of ghosts, bats and the words “Happy Halloween.” There is a battery compartment on the bottom that holds three small button batteries. Adjacent to the battery compartment is an on/off button that when activated flashes different color lights in various modes. The product provides frivolous amusement for children four years of age and older. The applicable subheading for the “Flashing Baton 14 inch” will be 9503.00.0073, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Tricycles, scooters, pedal cars and similar wheeled toys…dolls, other toys…puzzles of all kinds; parts and accessories thereof… ‘Children’s products’ as defined in 15 U.S.C. § 2052: Other: Labeled or determined by importer as intended for use by persons: 3 to 12 years of age.” 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 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.  As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain. The marking for the submitted sample is not conspicuous and does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.  While it is marked “Made in China,” it would not be seen as it is covered by the purple plastic wrap.  The country of origin must be printed in larger size letters and in a more prominent location on the foam stick, or, if printed in that same location, must not be covered and must be printed in letters that contrast enough with the white background so that the ultimate purchaser can easily find the marking upon casual examination. 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 James Forkan at (646) 733-3025. Sincerely, Thomas J. Russo Director National Commodity Specialist Division