CLA-2 RR:CR:GC 961041 HMC
Port Director of Customs
300 S. Ferry St.
Terminal Island, CA 90731
RE: Protest 2720-97-100998; Steel Balls for Ball Point Pens; Subheading 8482.91.00; Explanatory Notes 84.82 and 96.08; Balls for Ball Point Pens
Dear Port Director:
This is our decision on Protest 2720-97-100998, filed against your classification of finished steel balls for ball point pens. The entries under protest were liquidated on June 27, 1997, and this protest timely filed on September 25, 1997.
FACTS:
The merchandise under protest consists of finished steel balls for ball point pens. They are tiny balls that transfer ink from an ink cartridge to a writing paper. The protest state that the balls are made from U.S. made semi-finished balls which had been chopped up from stainless steel wire and put into the preliminary grinding process prior to being exported to Switzerland for further grinding and polishing operations. The protest further states that the balls have a 1.0 mm (0.03937 inch) diameter with variation of 0.000508 mm (0.00002 inch or 0.0508%). The maximum diameter is 1.000506 mm (0.03939 inch) and the minimum diameter is 0.99949 mm (0.03935 inch).
The merchandise was entered under a provision for “any article of metal (as defined in U.S. note 3(d) of this subchapter) manufactured in the United States or subjected to a process of manufacture in the United States, if exported for further processing, and if the exported article as processed outside the United States, or the article which results from the processing outside the United States, is returned to the United States for further processing” under subheading 9802.00.60 of the Harmonized Tariff Schedule of the United States (HTSUS), and subheading 7218.99.00, which provides for “semi-finished products of stainless steel, other, other.” However, the entries were liquidated under subheading 9608.99.30, HTSUS, as “balls for ball point pens.” Protestant has abandoned his claim that the merchandise is classifiable under subheading 9802.00.60 and now claims that the merchandise is classifiable as “ball or roller bearings, and parts thereof, parts, balls, needles and rollers, balls, of alloy steel” under subheading 8482.91.00, HTSUS.
The 1997 provisions under consideration are as follows:
8482 Ball or roller bearings, and parts thereof:
Parts:
8482.91.00 Balls, needles and rollers...4.6%
* * * *
9608 Ball point pens; felt tipped and other porous-tipped pens and markers; fountain pens, stylograph 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:
Other:
9608.99.30 Balls for ball point pens...28¢/thousand + 4.9%
ISSUE:
Whether the balls for ball point pens are classifiable as balls for ball point pens under subheading 9608.99.30, HTSUS, or as balls, needles and rollers of ball bearings under subheading 8482.91.00, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
The Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the EN’s should always be consulted. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 96.08, at page 1733, states that:
(1) Ball point pens. These generally consist of a body enclosing a tube of ink terminated by a ball.
The EN further states that heading 9608 also covers identifiable parts not more specifically included elsewhere in the Nomenclature. For example:
Pen nibs of any design including unfinished nibs roughly cut to shape; clips; refills for ball point pens, comprising the ball point and the ink reservoir; holders for the ball points or felts of marking stylographs; ink flow regulators; barrels for pens or pencils of this heading; filling or propelling mechanisms; ink sacs of rubber or other materials; point protectors; interchangeable renew nib units comprising nib, feed and collar; nib points (or pen points) which are small balls made from platinum alloys or from certain tungsten alloys used for pointing the tips of pen nibs to prevent premature wear.
In this instance, it is clear that the merchandise is balls for ball point pens. The balls are used as an easy means of transferring ink from an ink cartridge to writing paper. The balls are a component part necessary to the completion of pens, and, as such, they are described by heading 9608.
Protestant contends that the merchandise is classifiable as balls of ball bearings under subheading 8482.91.00, HTSUS. EN 84.82 states, at page 1433, that
heading 8482 covers all ball, roller or needle roller type bearings. They are used in place of smooth metal bearings and enable friction to be considerably reduced. They are generally fitted between the bearing housing and the shaft or axle, and may be designed to give radial support (radial bearings) or to resist thrust (thrust bearings). Certain bearings may be designed for both radial and thrust support.
Normally, bearings consist of two concentric rings (races) enclosing the balls or rollers, and a cage which keeps them in place and ensures that their spacing remains constant.
We find that the balls for ball point pens do not meet the definition of balls for ball bearings in the ENs. There is no evidence that the balls’ main function is to considerably reduce friction. It is our view that the subject balls are designed to facilitate the transfer of ink from a pen’s cartridge to paper. The balls may smooth this process but any antifriction function the balls provide is only subsidiary to the main function of transferring ink. We thus find that the merchandise is not described by heading 8482, HTSUS.
The protestant cites EN 96.08, which states, at page 1733, that heading 9608 does not cover steel balls for ball point pens and pencils (heading 73.26 and 84.82). In this case, we find that EN 96.08 cannot apply since the merchandise is not described by heading 8482. Moreover, assuming, arguendo, that the balls were described by heading 8482, the EN would contradict the dictate of GRI 1 that the merchandise is classifiable in heading 9608. The language of this provision, we find, is clear and unambiguous and the EN cannot bar a determination arrived at by the terms of a heading or any relative Section or Chapter Note.
HOLDING:
Under the authority of GRI 1, the balls for ball point pen are classifiable under subheading 9608.99.30, HTSUS, as “Balls for ball point pens.” The 1997 rate of duty is 28¢/thousand + 4.9%.
This protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division