CLA-2 CO:R:C:G 081193 PAM 825037

Mr. John Goodrich
Fingerhut Corporation
4400 Baker Road
Minnetonka, MN 55343

RE: Tariff classification of a clock/calculator key chain and pen packaged together for retail sale

Dear Mr. Goodrich:

Your letter of August 28, 1987, requesting a classification ruling on a pen and calculator/clock key chain was forwarded to this office for reply.

FACTS:

The merchandise consists of a ball-point pen and a calculator with a built-in timekeeping mechanism. The calculator is at- tached to the end of a metal key chain. These articles are pack- aged together for retail sale at the time of importation. New York Ruling 825037 of October 2, 1987, addressed the classifica- tion of this merchandise under the Tariff Schedules of the United States. We did not receive a sample of this merchandise.

ISSUE:

Whether the pen and calculator/clock key chain are classified separately or as a set under the proposed Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

LAW AND ANALYSIS:

Classification of commodities entering the United States will be in accordance with the General Rules of Interpretation (GRI) in the HTSUSA. The first four rules must be applied in the order in which they are presented.

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The components of this merchandise cannot be classified together according to any of the terms of the headings or any relative section or chapter notes. GRI 1. Several subheadings could apply to different aspects of this merchandise. For instance, subheading 8470.10.0040, HTSUSA, covers calculators, regardless of the incorporation of a timekeeping mechanism; subheading 9608.10.0000, HTSUSA, covers ball-point pens; and subheading 7326.90.9090, HTSUSA, which covers articles of iron or steel would include the chain and key ring portion of the key chain. None of these subheadings are broad enough to encompass all of the articles packaged together for retail sale at the time of importation.

Since this merchandise cannot be classified together accord- ing to the terms of GRI 1, it is necessary to proceed to GRI 2, which contains two clauses. The first extends the provisions of headings to include articles that are incomplete or unfinished, and the second extends them to include mixtures or combinations of materials, and goods consisting of two or more materials or substances, when we are dealing with a heading based on a material. Under GRI 2(b), goods composed of more than one material or substance are considered to be prima facie classifiable in two or more headings if those headings correspond to each one of the constituent materials or substances. This rule indicates that GRI 3 should govern the classification of goods consisting of more than one material or substance.

Neither of these clauses applies to this merchandise. The first clause cannot affect the situation because each element of this merchandise is complete or finished. The second clause does not apply because there is no question of headings referring to materials. Therefore, it is necessary to proceed to GRI 3.

GRI 3 is divided into three parts designed to resolve classi- fication questions which arise when goods otherwise appear to be classifiable in two or more headings. As a condition to classification under the GRI 3, goods must be prima facie classifiable under two or more headings of the HTSUSA.

GRI 3(a) requires goods to be classified under the heading that provides the most specific description. However, this rule does not apply when two or more headings each refer to only one of the constituent articles which comprise "goods put up in sets for retail sale." In such circumstances, the competing headings are to be regarded as equally specific in relation to those goods. Therefore, the classification of articles under GRI 3(a) will depend upon whether they constitute "goods put up in sets for retail sale."

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Initially, these articles appear to be "goods put up in sets for retail sale." However, they fail to meet one of the three elements used in the Explanatory Notes (Harmonized Commodity Description and Coding System), Volume 1, pages 4 and 5, to explain that phrase. Although the pen and calculator/key chain are packaged together for retail sale, and are prima facie classifiable in two or more headings, they are not products or articles put up together to meet a particular need or carry out a specific activity.

The terms of GRI 3(a) specifically exclude merchandise that qualifies as "goods put up in sets for retail sale," from classi- fication under the principle of relative specificity. Once we determine that the merchandise fails to constitute "goods put up in sets for retail sale," those goods are classified separately, instead of being classified together under any of the provisions of GRI 3. The analysis of these articles as individual items begins at GRI 1 and progresses to GRI 4 in a consecutive fashion.

Our reconsideration of the ball-point pen and calculator/key chain as separate commodities begins with GRI 1. We will con- tinue with our analysis of the calculator/key chain, since the classification of this ball-point pen does not present any diffi- cult issues.

The clock/calculator and key chain combination cannot be classified under GRI 1 according to the terms of the headings or any relative section or chapter notes. Two subheadings could ap- ply to this commodity. Subheading 8470.10.0040, HTSUSA, covers calculators and subheading 7326.90.9090, HTSUSA, covers articles of iron or steel. Yet neither of these provisions is broad enough to encompass every aspect of this article.

The clauses of GRI 2 also do not apply to this commodity. The calculator/key chain is a finished article, so rule 2(a) is not relevant. This commodity is not potentially classifiable un- der two or more headings which refer to different materials or substances. Subheading 7326.90.9090, HTSUSA, which covers articles of iron or steel is the only relevant portion of the HTSUSA that refers to a material or substance. This calculator/key chain is not considered to be a mixture or combination of materials or substances, or goods consisting of more than one material or substance, that is prima facie classifiable under two or more headings of the HTSUSA within the meaning of GRI 2(b).

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The calculator/key chain would be classified according to the provisions of GRI 3 if "for any other reason" it is considered to be prima facie classifiable under two or more headings of the HTSUSA. Devices consisting of more than one component are considered to be prima facie classifiable under two or more head- ings, provided that at least two of the components are classifi- able in different headings of the HTSUSA.

GRI 3(a) requires goods to be classified under the heading that provides the most specific description. However, this rule does not apply when two or more headings each refer to only one of the constituent elements which comprise composite goods. In such circumstances, the competing headings are to be regarded as equally specific in relation to those goods. GRI 3(a). There- fore, the classification of commodities under GRI 3(a) will de- pend upon whether they constitute composite goods.

The constituent elements of this calculator/key chain are at- tached to each other to form a practically inseparable whole. They are adapted one to the other and are mutually complementary and together they form a whole which would not normally be of- fered for sale in separate parts. The size of the calculator is specially adapted to its use with the key chain and each of these articles appears to be designed for use with the other. The size of the calculator forces us to conclude that it would not nor- mally be sold apart from the key chain. Since the calculator/key chain is a composite commodity, we must proceed with the analysis under GRI 3(a).

This calculator/key chain is potentially classifiable as a calculator under subheading 8470.10.0040, HTSUSA, which provides for electronic calculators capable of operating without an external power source, or under the competing provision for articles of iron or steel in subheading 7326.90.9090, HTSUSA. The components of this device are each prima facie classifiable under different provisions of the HTSUSA. GRI 3(a) prevents this calculator/key chain from being classified according to the principle of most specific provision by requiring that the competing provisions applicable to composite article be treated as equally specific. Our analysis must then address the principle of essential character in GRI 3(b).

These composite goods are not susceptible to classification under the principle of essential character. The nature of this article is intimately intertwined with each of its constituent elements. It is impossible to determine which component is more essential to the structure, core or condition of this article.

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We consider the nature of this calculator/key chain to be derived from the combination of these two components. Therefore, the es- sential character of this merchandise is dependent upon both the calculator and the key chain in equal proportions.

When a classification question cannot finally be resolved by the application of GRI 3(a) and GRI 3(b), then, by virtue of GRI 3(c), the goods are classified under the heading which occurs last in numerical order among those which equally merit consider- ation. In this instance, the subheading for calculators (8470.10.0040, HTSUSA), and the subheading for articles of iron or steel (7326.90.9090, HTSUSA), equally merit consideration.

As noted earlier, the classification of this pen does not present any difficult issues of either a legal or factual nature, since the terms of subheading 9608.10.0000, HTSUSA, specifically provide for ball-point pens.

CONCLUSION:

For the reasons stated above, the calculator/key chain is classified under subheading 8470.10.0040, HTSUSA, which provides for calculators dutiable at the column one rate of 3.7 percent ad valorem. The pen is classified under subheading 9608.10.0000, HTSUSA, which provides for ball-point pens dutiable at the column one rate of 0.8 cents each plus 5.4 percent ad valorem. We have not been provided with information regarding the country of origin of this merchandise but, for purposes of this ruling, we assume that the goods are subject to column one rates of duty. This classification represents the present position of the Customs Service regarding the dutiable status of the merchandise under the proposed HTSUSA. If there are changes before enactment, this advice may not continue to be applicable.

Sincerely,

John Durant, Director
Commercial Rulings Division

Enclosure

6cc: Area Director, New York Seaport
1cc: Area Director, Newark
1cc: Department of Commerce
1cc: John Durant
1cc: Phil Robins
PAMartin:jaj:7/12/88