CLA-2 RR:CR:GC 961668 JGB
Mr. Herbert William Julich
Delmar International, Inc.
147-55 175th St.
Jamaica, NY 11434
Re: Ball Point Pen with Perfume Atomizer
Dear Mr. Julich:
This is in reference to your letter of February 27, 1998, to the Customs National Commodity Specialists Division, New York, on behalf of Bankers Pen, Inc., in which you request a ruling under the Harmonized Tariff Schedule of the United States (HTSUS) on a combination ball point pen with perfume atomizer. Your letter was referred to this office for response. We regret the delay in responding.
FACTS:
The pen is a combination article consisting of a standard ball point pen with an atomizer for perfume incorporated at one end. You indicate in your supplemental letter of March 23, 1998, that replacement ink cartridges are not available for retail sale and that the pen is imported from Hong Kong.
ISSUE:
Whether the article is classifiable as a pen in heading 9608, HTSUS, or as a scent spray atomizer in heading 9618, HTSUS?
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. The majority of imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes.
The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI's.
This article is clearly a composite good and, as such, cannot be classified by GRI 1, in that no single heading describes the article. The atomizer article alone would be classified under heading 9616, HTSUS, the provision for scent sprayers and similar toilet sprayers. The pen component alone would be classified under heading 9608, HTSUS, the provision for ball point pens, among other things. Under the provisions of GRI 2, “the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3 provides, in pertinent part, “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:...when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods ... 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.” GRI 3(b) provides that “... composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.”
The ENs to GRI 3(b) at paragraph (VIII) lists, as factors to help determine the essential character of such goods, the nature of the materials or components, their bulk, quantity, weight or value, and the role of a constituent material in relation to the use of the goods.
The atomizer component of the article is certainly as “functional” as the pen, making the essential character determination a close call. The pen component appears to be a prominent feature of the article. It constitutes the body and is the largest and most visible portion of the article. The user would perceive the article to be a pen and perhaps be surprised or pleased to learn
that it was also an atomizer. Therefore, in considering mainly the relationship or role of the pen component to the use of the article, we conclude that the pen component represents the essential character.
In reaching this conclusion, this office is cognizant of Headquarters Ruling Letter (HRL) 958751, dated December 24, 1996, in which a combination article of a pen and a “Talkboy F/X Recording Pen” was held to be a toy, in part, because the writing capability was minimal and because ink refills were not readily available to the purchaser. Here, the ink refills are likewise not readily available; however, our determination as to essential character is based on the relative values or utility of the components measured against each other.
Within heading 9608, HTSUS, the specific subheading is 9608.10, the provision for “Ball point pens;...parts (including caps and clips) of the foregoing articles, other than those of heading 9609: Ball point pens.”
HOLDING:
The ball point pen with perfume atomizer is classifiable in subheading 9608.10, HTSUS, the provision for “Ball point pens;...parts (including caps and clips) of the foregoing articles, other than those of heading 9609: Ball point pens.”
Sincerely,
John A. Durant, Director Commercial Rulings Division