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HQ 950829


January 16, 1992

CLA-2 CO:R:C:M 950829 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9608.91.00

Ms. Pam Brown
Rogers & Brown Customs Brokers, Inc.
P.O. Box 20160
Charleston, South Carolina 29413-0160

RE: Polyester pen point; GRI 1; EN 96.08; pen nibs; 072636; 062524; The Compact Edition of the Oxford English Dictionary

Dear Ms. Brown:

This is in response to your letter dated November 18, 1991, to Customs in Savannah, Georgia, on behalf of Porex Technologies, regarding the tariff classification of polyester pen points under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter and samples were forwarded to this office for a response.

FACTS:

The merchandise under consideration is a polyester pen point. This polyester rod is the actual point of the pen and not merely an ink feed rod to the point of the pen. The polyester pen point absorbs the ink from one end and passes the ink directly onto the writing surface.

ISSUE:

What is the proper tariff classification of the polyester pen point under the HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states in part that "for legal purposes, classification shall be determined according to the terms of headings and any relative section or chapter notes...."

Heading 9608, HTSUS, provides for "Ball point pens; felt tipped and other porous-tipped pens and markers; fountain pens, stylograph pens and other pens...; parts (including caps and clips) of the foregoing articles, other than those of heading 9609...." Explanatory Note (EN) 96.08 of the Harmonized Commodity and Description Coding System (HCDCS) states that this heading "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."

HCDCS, Vol. 4, p. 1607. The Explanatory Notes, although not dispositive, are to be looked to for proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 189).

Under item 760.32, Tariff Schedules of the United States (TSUS), which provided for "Pen points; and parts of any of the articles described in the foregoing provision of this part...Pen points...Other," Customs used the terms "nib," "tip" and "point" indiscriminately when referring to that part of the pen. See, Headquarters Ruling Letter (HRL) 072636 dated September 9, 1983. Under the TSUS, we held that a pen point, nib or tip is that part of a pen which is most immediately capable of delivering ink to a writing surface. See, HRL 062524 dated June 25, 1980.

It is our position that there is no practical difference between the term "pen point" in TSUS and the term "pen nib" in HTSUS for classification purposes. The Compact Edition of the Oxford English Dictionary (1982), defines a "nib" as

[t]he point of a pen...[a] separate pen-point, now usually made of steel, intended for fitting into a pen- holder...[t]he point of anything....

Vol. 1, p. 124. The polyester pen point is that part of the pen which is capable of delivering ink to the writing surface and, therefore, is considered to be the point of the pen or the "pen nib." Accordingly, the polyester pen point is properly classified under subheading 9608.91.00, HTSUS, as "...Other...Pen nibs and nib points."

HOLDING:

The polyester pen point is properly classified under subheading 9608.91.00, HTSUS, as "...Other...Pen nibs and nib points," which is a duty free tariff provision.

Sincerely,

John Durant, Director
Commercial Rulings Division

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