OT:RR:CTF:CPMMA H328405 DAC
Mr. Donald S. Stein, Esq.
Greenberg Traurig, LLP
2101 L Street N.W.
Washington, D.C. 20037
RE: Affirmation of NY N301425; Classification of Felt Tipped Markers for Temporary Tattoos
Dear Mr. Stein:
This is in response to your request, on behalf of BIC USA, Inc. (BIC), for reconsideration of New York Ruling Letter (NY) N301425, dated November 20, 2018, concerning the tariff classification of felt tipped markers for temporary tattoos. In NY N301425, U.S. Customs and Border Protection (CBP) classified the subject merchandise under subheading 9608.20.00, Harmonized Tariff Schedule of the United States (HTSUS), as felt tipped markers. You request that NY N301425 be revoked, and that the subject merchandise be classified under subheading 3304.99.50, HTSUS, which provides for, “Beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations: Other: Other: Other.” We note that there has been no change in the terms of the relevant HTSUS subheading since 2018 when NY N301425 was issued. We have reviewed NY N304425 and have determined that the classification of the subject merchandise under subheading 9608.20.00, HTSUS, was correct.
In NY N301425, the subject merchandise was described as follows:
“Tattoo Marker” consist[s] of a felt tipped marker containing an alcohol-based ink in a filler system housed in a plastic barrel casing that includes a cap for securing the felt tip and preventing the ink from drying out. The tattoo marker is designed for writing and creating temporary tattoos on the skin.
In your reconsideration request, you state that the subject merchandise is a product made in South Korea. The subject merchandise is claimed to be imported primarily into the ports of Charleston, South Carolina, and Savannah, Georgia. You contend that NY N301425 was incorrect and that the subject merchandise should be classified under subheading 3304.99.50, HTSUS.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 2 through 6 may then be applied in order.
Initially, we note that there have been no changes to the terms of subheadings 9608.20.00 and 3304.99.50, HTSUS, between the 2018 HTSUS Revision 14 edition and the current 2024 HTSUS Revision 5 edition.
The 2024 HTSUS provisions at issue are as follows:
3304 Beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations:
Other:
Other:
3304.99.50: Other
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:
9608.20.00: Felt tipped and other porous-tipped pens and
markers
* * * * *
Here, pursuant to GRI 1, the subject felt tipped markers for temporary tattoos are specifically provided for by the terms of heading 9608, HTSUS, as felt-tipped markers. “HTSUS terms are construed according to their common commercial meanings.” Len—Ron Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003); see also Amcor Flexibles Singen GmbH v. United States, 425 F. Supp. 3d 1287, 1295 (Ct. Int’l Trade 2020).
You request classification under subheading 3304.99.50, HTSUS, pursuant to GRI 3(b). CBP disagrees with the suggested classification. Classification under GRI 3(b) may only be used in instances where the subject merchandise cannot be classified pursuant to GRI 1. The subject merchandise is specifically provided for by the terms of heading 9608, HTSUS, at GRI 1; therefore, there is no need to resort to GRI 3(b). Furthermore, in requesting the reconsideration of NY N301425, BIC has not provided any relevant new or additional information in regard to the subject merchandise that would change the classification in NY N301425. Additionally, the terms of heading and subheading have not changed in regard to the relevant subheading 9608.20.00, HTSUS. In sum, there has been no change in the law, and no new or additional facts and information have been provided to change the determination in NY N301425. In accordance with GRI 1, heading 3304, HTSUS, is not a proper heading for the subject merchandise, because the terms of the heading do not specifically provide for the subject felt tipped markers for temporary tattoos. By application of GRIs 1 and 6, the subject felt tipped markers for temporary tattoos are classified in heading 9608, HTSUS, specifically subheading 9608.20.00, HTSUS, which provides for “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: Felt tipped and other porous-tipped pens and markers.” The 2024 column one, general rate of duty is 4 percent ad valorem. Accordingly, NY N301425, dated November 20, 2018, is hereby affirmed.
Sincerely,
Yuliya A. Gulis, Director Commercial and Trade Facilitation Division