CLA-2-39:OT:RR:NC:N4:422
Mr. Brian W. Ziha
Customs Express, Inc.
4500 Woodson Road
St. Louis, MO 63134
RE: The tariff classification of a plastic jack-o’-lantern bucket from China
Dear Mr. Ziha:
In your letter dated April 27, 2010, on behalf of MK Arts, you requested a tariff classification ruling.
The submitted sample is identified as a bucket with a jack-o’-lantern face. It is made of polypropylene (PP) plastic material and is orange in color. The outer shell of this item is in the shape of a pumpkin with depressions on the front surface that are designed to resemble two eyes, a nose and a mouth, which are all black in color. The height of the outer shell is approximately 8¾” and the diameter is approximately 10” at the widest point. The outer shell is hollow and open at the top and at the bottom. A black semicircular handle is attached at both ends to the top of the item.
Incorporated within the outer shell is a cylindrical vessel with an open top that stands approximately 8” in height and has a diameter of approximately 6¼” which is the same from top to bottom. The inner vessel and the outer shell are both glued at the top to an outer black rim.
The entire item sits on a detachable black base that houses 3 AA batteries and wiring. The wiring runs through the open bottom of the outer shell and connects to eighteen light emitting diodes (LEDs) that are situated around the external perimeter of the top of the internal vessel and is completely covered by the outer shell. There is an on/off push button switch on the bottom surface of the base that operates the power from the batteries to the LEDs. When the switch is in the on position, the entire outer shell lights up in the dark. The entire item, including the base, stands at 9” in height.
This item is considered to be a composite good within the meaning of General Rule of Interpretation (GRI) 3. The item is designed to hold candy and other treats and can perform this function even when the LEDs are powered off. The LEDs provide this item with additional decorative appeal but do not enhance the primary function of this item, which is as a container. Therefore, it is the opinion of this office that the plastic vessel provides this item with the essential character within the meaning of GRI 3(b).
You have suggested that this item is correctly classified in subheading 3926.90.1000 and subheading 9817.95.05. However, we do not agree that this item is correctly classified in subheading 3926.90.1000. Heading 3924 provides, in part, for tableware and kitchenware of plastics. Heading 3926 provides for other articles of plastics. According to GRI 3(a), the heading which provides the most specific description shall be preferred to headings providing a more general description. Since this item is of the class or kind of merchandise that is filled with candy and placed on a table during a Halloween party, it is classifiable in subheading 3924.10.4000, which provides for tableware, kitchenware…of plastics: tableware and kitchenware: other.
However, with regard to the applicable rate of duty, as you suggested, 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, the instant item is correctly classified therein. The applicable subheading for the bucket with a jack-o’-lantern face will be 9817.95.05, HTSUS, which provides for articles classifiable in subheadings 3924.10…the foregoing meeting 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/.
You have also stated that currently the importer will only import this item in orange but you “would like to verify if other colors will be treated the same.” In order to issue a classification ruling for other versions of this item, we will need a sample of each specific item that is in question. When the sample(s) are available, you may wish to consider resubmission of your request. We are returning all submitted documents. If you decide to resubmit your request, please include all of the material that we have returned to you.
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