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HQ 088359


March 22, 1991

CLA-2 CO:R:C:M 088359 MBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9608.20.00

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

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

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