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HQ 959717




July 18, 1997

CLA-2 RR:TC:FC 959717 ALS

CATEGORY: CLASSIFICATION

TARIFF NO. 9503.90.0030; 9503.90.0060; 9608.10.0000

Port Director of Customs
U.S. Customs Service
555 Battery St.
San Francisco, CA 94111

RE: Application for Further Review of Protest 2809-96-100745, dated May 29, 1996, Concerning Items Referred to as Power Penz

Dear Ms. Rigdon:

This is in reference to the protest that was filed against your decisions of March 1, 1996, regarding 3 entries for the subject articles.

FACTS:

The items under consideration are a series of articles marketed under the name "Power Penz" which consist of a ball point pen with a 1 1/2 inch long refill with a second feature. The articles come with 3 refills and additional refills may be purchased directly from the importer. The articles and their individual characteristics are as follows:

1. Scope Power Penz -- The pen barrel flips open permitting one to use the barrel as a telescope and to focus by sliding the barrel component back and forth. The pen unit has a mirror on its end opposite the pen point.

2. Air Attack Power Penz -- The barrel is pulled apart and helicopter blades are inserted therein. The blades are launched by grabbing the shaft and pulling the copter cover.

3. Dart Launcher -- This item has a spring lever mechanism. The item is operated by pulling back that mechanism, inserting the darts in the end of the barrel and then releasing the trigger.

4. Soundz -- the item contains a battery and speaker, One can make 3 sound combinations by setting a slide switch and then pressing a button.

5. Spyzone -- Item is battery operated. It contains a directional microphone and amplifier which one can use to listen in on and record conversations.

6. Coder -- This item permits one to write with "invisible ink." It has a black light flashlight which permits one to see the writing.

7. Secrets -- Same as item 6.

8. Racers -- This is similar to item 3 except that the articles launched are miniature racing cars.

9. Rocket Slam -- This is similar to items 3 and 8 except that the end of the barrel is hit to launch the rocket instead of utilizing a trigger.

10. Jammin' -- This item is similar to item 4 insofar as it contains a battery and speaker. It also has "piano keys" built into the barrel which one can push to make different sounds.

11. Rim Shot -- The item unfolds to reveal a hoop and permit one to shoot basketballs by placing a ball on a flipper and then pressing and releasing it. Three balls are included with the article.

12. Laser Shots -- There are 2 in a package. Each unfolds to look like a gun. One shoots a light beam at the same type of item held by an opponent. Colors light up and sounds are made when the opponent "gun" is hit. The sound can be shut off. (Item also available in package of 1).

ISSUE:

What is the classification of the instant items which are ball point pens with the capability of writing and, in some cases, have an additional feature which is designed to amuse children?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In considering the classification of the subject items, we note that they generally serve as writing instruments, being partially ball point pens, and also another function, unrelated to the writing function. In this regard, some of the items function in a strictly mechanical fashion, e.g., Power Penz Racers, while others need batteries to perform their functions, e.g., Laser Shots. Those needing batteries are referred to as Electro Power Penz. All of the items have at least two components, the pen and the second component. In most cases these components are not related to one another. We have, therefore, concluded that they cannot be classified pursuant to GRI 1.

Two items, however, are an exception to that conclusion. These items are the Power Penz Coder and the Power Penz Secrets. Both of these items perform one function, writing with "invisible ink." Each item has a flashlight attached to its barrel which we understand emits black light and permits one to read what has been written with the "invisible ink." We understand that this light cannot function like a flashlight and that its sole function is to permit the "invisible ink" to be read. Thus, we have concluded that these items should be classified in accordance with such writing capability.

We next approach a group of items which are both writing instruments and articles designed for amusement and/or another function. These include Power Penz Scope which is said to function as a telescope, mirror and magnifier and Power Penz Spyzone. While these items have a stated capability similar to commercially available products designed to perform those function, we believe that their ability to perform those functions is so limited as to make them impracticable for that purpose. The second feature of other articles of this group have no function, except to amuse. These include Power Penz Racers which permit miniature plastic cars to be propelled across a hard surface by a plunger and spring mechanism built into the barrel of the pen and to store the cars therein when not in use. Also included therein is the Power Penz Rim Shot, referred to as the basketball action pen. By following the directions one can set up a backboard with a hoop and, by using a ball placed on a flipper, shoot the ball through the hoop and keep track of how many shots one places through the hoop on the counter. All these items, when closed, form the barrel of the completed articles. This item is so bulky, approximately 1 inch by 7/8 inch as to cause one to wonder whether it could be gripped to write.

Thus, we have a series of articles designed to serve as a writing instrument and to amuse. We understand that the purpose of such functional combinations, because of the pen feature, is to permit the item to be smuggled into school and other areas where the plain item would be inappropriate.

In considering whether these articles might be considered toys we referred to the Explanatory Notes (EN) to chapter 95 of the Harmonized System which represents the opinion of the international classification experts. The EN indicate that chapter 95 "covers toys of all kinds whether designed for amusement of children or adults." We, therefore, considered whether the purpose of the second feature of the subject articles is to amuse the children to whom the - 4 -
products are marketed. We have concluded that these articles, designed to propel items, shoot light beams, make sounds, etc. are designed to amuse. We, however, note that this conclusion covers only part of each article and that each has the capability of writing, which is not an amusement function.

Since these are complete finished articles in their retail packages, classification under
GRI 2 is not appropriate. Similarly, classification pursuant to GRI 3(a) is not appropriate since each subheading which might be applicable to the article, 9503.90 as to toys or 9608.10 as to ball point pens, refers to only a part of these composite goods and, are, therefore, regarded as equally specific. We next referred to GRI 3(b) which provides, among other criteria, for the classification of goods according to the component which gives the articles its essential character, insofar as this criterion is applicable. The EN to GRI 3(b), at section (VIII) explain that the factor which determines essential character can vary as between different kinds of goods. It indicates that essential character "...may, for example, be determined by the nature of the material or component, it bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods."

In considering the instant articles which have a second feature, i.e., they are ball point pens and are also designed to amuse, we note that they are functional pens. While they may not have the quantitative writing capabilities of ball point pens that perform no other function, each of the articles comes with 3 refills with enough ink for approximately 130 pages of writing and additional refills may be purchased from the importer.

In further examining these articles with a second feature, we note their bulk, packaging and marketing. We also note that some of these second features, because of their bulk and configuration, would actually appear to interfere with the use of the article as a writing instrument, certainly for any extended period of time. Thus, we believe that the amusement feature of these articles are their predominant feature and form their essential character.

HOLDING:

Power Penz such as Coder and Secrets, which are ball point pens whose sole function is to write or draw, are classifiable in subheading 9608.10.0000, HTSUSA, the provision for ball point pens. Articles so classifiable are subject to a general rate of duty of .8 cents each plus 5.4 percent ad valorem.

The remaining Power Penz, having a second feature designed to amuse children and which, when considering all the factors relative to the functioning, packaging and marketing thereof, such feature forms the predominant feature of the article, provided its essential character, are classifiable based on that feature. Such Power Penz are classifiable in subheading 9503.90.0030, HTSUSA, the provision for Other toys..., Other, Other toys...not having a spring - 5 -
mechanism or in subheading 9503.90.0060, HTSUSA, the provision for Other toys...Other, Other: Other toys, having a spring mechanism. Articles classifiable under either of those subheadings are subject to a free general rate of duty.

Although the protestant claimed an alternative classification of subheading 9503.80.00, HTSUSA, which covers "Other toys..., incorporating a motor,..." we were, based on an examination of the articles and discussion with counsel, unable to confirm that any of the articles contained a motor. Therefore, the possibility of such a classification has not been considered in connection with the articles which are subject of the protest.

Insofar as the classification of the merchandise as indicated above would result in the same rate of duty as claimed for some of the items you are instructed to allow the protest as to those items. Insofar as the classification of the merchandise as indicated above would result in a rate of duty the same as the liquidated rate, your are instructed to deny the protest as to those items.

A copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3(A)(1)(b) of the Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be provided by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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