CLA-2 CO:R:C:M 088359 MBR
Mr. Jeffrey H. Pfeffer
Fritz Companies, Inc.
40 Exchange Place, 12th Floor
New York, NY 10005
RE: Combination Ball Point Pen and Felt Tip Marker; Composite
Good; GRI 3(a); GRI 3(b); GRI 3(c)
Dear Mr. Pfeffer:
This is in reply to your letter of November 6, 1990, on
behalf of Custom Impressions, Inc., requesting classification of
two models of combination ball point pen and felt tip markers,
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA).
FACTS:
The merchandise at issue consists of two models of
combination ball point pen and felt tip markers called "The
Scoop" and "The Sprite." Both models have a ball point pen on
one end and a felt tip marker on the other end. The Scoop has a
tungsten-carbide roller ball pen on one end, a yellow fluorescent
chisel-tip "highlighter" marker on the other end, and a
polypropylene body. The Sprite is "Scoop's little brother," and
has a solid brass ball point at one end and a yellow fluorescent
chisel-tip marker at the other, with an ABS plastic body.
ISSUE:
What is the classification of a combination ball point pen
and felt tip marker, under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA)?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUSA
govern the classification of goods in the tariff schedule. GRI 1
states, in pertinent part:
...classification shall be determined according to the terms
of the headings and any relative section or chapter notes...
You argue that these combination ball point felt tip marker
pens ("marker pens") are properly classifiable under subheading
9608.10.00, HTSUSA, which provides for: "Ball point pens; felt
tipped and other porous-tipped pens and markers;...: Ball point
pens."
However, the marker pens are also prima facie classifiable
under subheading 9608.20.00, HTSUSA, which provides for: "Ball
point pens; felt tipped and other porous-tipped pens and
markers;...: Felt tipped and other porous-tipped pens and
markers."
GRI 3 provides guidance here:
3. When, by application of Rule 2(b) or for any other reason,
goods are prima facie, classifiable under two or more
headings, classification shall be effected as follows:
(a) The heading which provides the most specific
description shall be preferred to headings providing a
more general description. However, when two or more
headings each refer to part only of the materials or
substances contained in mixed or composite goods or to
part only of the items in a set put up for retail sale,
those headings are to be regarded as equally specific
in relation to those goods, even if one of them gives a
more complete or precise description of the goods.
In the instant case, each subheading only refers to part of
this composite good, and therefore, each subheading must be
regarded as equally specific. Thus, we must turn to GRI 3(b),
which states:
(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), shall be classified as
if they consisted of the material or component which
gives them their essential character, insofar as this
criterion is applicable.
However, it is Customs position that neither the ball point
pen, nor the felt tip marker imparts the essential character of
the whole. Both features of the marker pen have equal utility
and, in fact, are usually sold separately as individual
entities. Therefore, GRI 3(c) applies:
(c) When goods cannot be classified by reference to 3(a) or
3(b), they shall be classified under the heading which
occurs last in numerical order among those which
equally merit consideration.
Therefore, the marker pen is properly classifiable under
subheading 9608.20.00, HTSUSA, which provides for: "Ball point
pens; felt tipped and other porous-tipped pens and markers;...:
Felt tipped and other porous-tipped pens and markers."
You also argue that the marker pens are classifiable under
subheading 3926.10.00, HTSUSA, which provides for: "Other
articles of plastics and articles of other materials of headings
3901 to 3914: Office or school supplies." However, clearly the
provision for felt tipped markers is more specific.
HOLDING:
The combination ball point pen and felt tip marker ("The
Scoop" and "The Sprite"), are properly classifiable under
subheading 9608.20.00, HTSUSA, which provides for: "Ball point
pens; felt tipped and other porous-tipped pens and markers;...:
Felt tipped and other porous-tipped pens and markers." The rate
of duty is 8 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division