CLA-2 RR:CR:GC 960828ptl
Louis S. Shoichet, Esq.
Tompkins & Davidson, LLP.
One Astor Plaza
1515 Broadway
New York, NY 10036-7900
Re: Stamper Bubble Pen; NY 818082; HQ 958751.
Dear Mr. Shoichet:
This is in response to the letter of July 15, 1997, to the
then Area Director of Customs, New York, NY, requesting a ruling
on behalf of your client, Avon Products, Inc., on the
classification under the Harmonized Tariff Schedule of the United
States (HTSUS), of a novelty pen. The letter and sample were
forwarded to this office for a response.
FACTS:
The merchandise is a ball point pen, approximately 6 inches
in length, containing a capped writing tip with a 1« inch ink
reservoir at one end, and a detachable self-inked stamper with a
cap at the other end. The clear plastic barrel of the pen
contains bubble solution and a bubble blowing wand. The stamper
cap forms the handle of the bubble wand and screws into the
barrel of the pen.
ISSUE:
Whether the Stamper Bubble Pen is properly classified as a
toy, a pen, or a date, sealing or numbering stamp article.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). The systematic detail of
the HTSUS is such that virtually all goods are classified by
application of GRI 1, that is, according to the terms of the
headings of the tariff schedule and any relative Section or
Chapter Notes. In the event that the goods cannot be classified
solely on the basis of GRI 1, and if the headings and legal notes
do not otherwise require, the remaining GRIs may then be applied
in order.
Inspection of the article reveals that it is a composite
article and that each of the components of the article are
classifiable under a different heading within the Harmonized
Tariff Schedule of the United States. Because the item is a
composite good, we turn to GRI 3(b) which states that when goods
are prima facie classifiable under two or more headings,
classification shall be effected as follows:
(b) Mixtures, composite goods consisting of different
materials or made up of different components, and goods put
up in sets for retail sale, which cannot be classified by
reference to 3(a) [by reference to the heading which
provides the most specific description], shall be classified
as if they consisted of the material or component which
gives them their essential character, insofar as this
criterion is applicable.
Under GRI 3(c), when goods cannot be classified by reference
to GRI 3(a) or (b), they shall be classified under the heading
which occurs last in numerical order among those which equally
merit consideration.
The headings under consideration are as follows:
9503 Other toys; reduced-size ("scale") models and
similar recreational models, working or not;
puzzles of all kinds; parts and accessories
thereof:
* * *
9503.90.00 Other
9608 Ball point pens; felt tipped and other porous-
tipped pens and markers; fountain pens, stylo-
graph pens and other pens; duplicating styli;
propelling or sliding pencils (for example,
mechanical pencils); pen-holders, pencil-holders
and similar holders; parts (including caps and
clips) of the foregoing articles, other than
those of heading 9609:
9608.10.00 Ball point pens
9611.00.00 Date, sealing or numbering stamps and the like,
(including devices for printing or embossing
labels), designed for operating in the hand;
hand-operated composing sticks and hand printing
sets incorporating such composing sticks.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
utilized. The Explanatory Notes (ENs), although not dispositive
or legally binding, provide a commentary on the scope of each
heading of the HTSUS, and are generally indicative of the proper
interpretation of these headings. See T.D. 89-80, 54 Fed. Reg.
35127, 35128 (August 23, 1989).
Under EN Rule 3(b)(VII), goods are to be classified as if
they consisted of the material or component which gives them
their essential character.
The submission proposes that because of the bubble wand and
bubble solution in the barrel of the pen, the article be
classified as a toy under heading 9503, HTSUS. You contend that
these components provide manipulative play value or frivolous
characteristics of toys and serve as the primary focus of the
article. Further, the bubble wand and solution provide the
article with its essential character.
The submission refers to HQ 958751, issued December 24,
1996, to support your contention that the article should be
classified as a toy. However, the "Talkboy F/X Recording Pen"
(Talkboy) which was the subject of that ruling can easily be
distinguished from the article currently under consideration.
With a stated retail price of $20.00, the Talkboy article was
comparatively highly priced for a writing instrument. Most of
that cost was associated with an electronic memorandum device and
other sound producing devices which were incorporated into the
pen. Customs believes that the significant cost differences of
the components and audio capabilities of the Talkboy were
determinative factors which resulted in the decision that its
amusement features outweighed its utilitarian functions. In this
article, you have provided no evidence that the cost of the
bubble wand and bubble solution are significantly greater than
the costs of the other components.
The next aspect of HQ 958751 raised is the relative size of
ink reservoirs in ball point pens and the availability of
refills. Customs does not believe these elements should be
accorded great weight. We note that many fully functional ball
point pens which are neither capable of nor intended to be
refilled are marketed. Thus, the availability of refills should
not determine whether a ball point pen is functional.
Additionally, we should also look to the capability of re-inking
of the article's stamp or refilling the container with bubble
solution when questioning functionality of this article. Neither
of these elements of the article appear to be readily revived
once the originally provided supply has been used. When all
components are considered, the primary functional element of the
article clearly is the writing component of the ball point pen.
In NY 818082, issued January 11, 1996, Customs classified a
similar item in subheading 9608.10.00, HTSUS. That item was
composed of a ball point pen with cap at one end, a self-inked
stamper with cap at the other. That item also had a bubble
blowing wand which fitted inside the barrel of the pen and was
attached to the stamper end. In that ruling, Customs determined
that the pen component gave the article its essential character.
From an examination of the sample provided, it appears that this
item is extremely similar to that described in NY 818082. Based
on the discussion above, Customs agrees with that ruling.
HOLDING:
In accordance with the above discussion, the article
referred to as a "Stamper Bubble Pen" is classified in subheading
9608.10.00, HTSUS, as a ball point pen.
Sincerely,
John Durant, Director
Commercial Rulings Division