CLA-2 RR:CR:GC 959005ptl
Port Director
U.S. Customs Service
35 West Service Road
Champlain, NY 12919
RE: Protest 0712-95-100712, Washable Markers.
Dear Port Director:
The following is our decision on protest 0712-95-100712,
against your classification under the Harmonized Tariff Schedule
of the United States (HTSUS) of Crayola Washable Markers.
FACTS:
The merchandise was entered on January 18, 1995 and the
entry liquidated on April 21, 1995, under the provision for felt
tipped and other porous-tipped pens and markers in subheading
9608.20.00, HTSUS, with duty at the general rate of 7.2 per cent
ad valorem. A timely protest under 19 U.S.C. 1514 was received
on July 20, 1995. The protestant requested reclassification of
the entry under the provision for markers in subheading
9608.20.00, HTSUS, noting that this subheading refers to
subheading 9905.96.10, HTSUS, which has a free duty rate under
the North American Free Trade Agreement (NAFTA) provisions for
plastic tip pens and dry erase markers (provided for in
subheading 9608.20.00).
On December 1, 1995, the protestant submitted another letter
to Customs which provided samples of the articles under protest
and raised new claims regarding additional merchandise which had
been entered and liquidated on the same entry documents.
The subject merchandise consists of two styles of Crayola
non-toxic, washable markers; Style 58-7089 called "Crayola
Classic Washable Markers," and Style 58-8192 called "Crayola
Scented Markers", made in Canada. Each style is packaged in a
box set containing 8 markers. Each of the markers contains a
different colored water based fluid ink. This fluid is
transferred from the marker to the writing surface through a
porous plastic tip. The scented markers, in addition to
containing the colored ink, contain a scent which is usually
associated with that particular color (yellow has a lemon scent,
purple has a grape scent, black has a licorice scent, etc.).
ISSUE:
Whether the markers are properly included in the NAFTA
subheading for plastic tip pens and dry erase markers.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRI). The systematic detail of
the HTSUS is such that virtually all 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. 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 GRI may then be applied
in order.
Customs and the protestant agree that the articles are
properly classified in subheading 9608.20.00 HTSUS, which
provides for "felt tipped and other porous-tipped pens and
markers". The disagreement arises over whether the articles fall
within the coverage of Note 2 in the Special Column Rate of Duty
for subheading 9608.20.00 which refers to subheading 9905.96.10,
HTSUS, which provides an exemption from duty under the NAFTA for
"plastic tip pens and dry erase markers (provided for in
subheading 9608.20.00)", products of Canada.
The two articles in question are packaged and marketed as
entertainment articles. The boxes are printed in the traditional
Crayola crayon design. On the back of the box of the Classic
washable formula markers, the text provides suggestions on how
the user can use imagination to turn traced outlines of "everyday
objects from around the house" into "crazy characters".
Instructional drawings accompany the suggestions. The text on
the back of the scented markers says that "The markers are
exciting to use with vivid colors and unique smells making your
coloring experience truly special!" Fanciful pictures of the
scents to which cartoon arms have been added illustrate the
scents which are listed on the box (orange, licorice, lemon,
green apple, chocolate, grape, cherry and blueberry). Included
on the back of both boxes are laundering instructions for washing
stains which use of the markers may cause on clothing. Included
in bold text is a "Stain Advisory" which warns that the markers
should be kept away from "wallpaper, matte finish paint,
unfinished wood, vinyl and other materials which cannot be
laundered."
All these factors indicate that the products are marketed
and expected to be used principally as markers for drawing or
coloring by youngsters and not as writing pens.
Under the United States-Canada Free Trade Agreement,
accelerated tariff elimination is generally achieved by
elimination of the duty for an entire 8-digit subheading. If the
parties could not agree on eliminating the duty for a particular
8-digit subheading, then at times, they would agree to eliminate
the duty on some specific type(s) of merchandise classified
within that 8-digit subheading. In such instances, the
merchandise is considered to have been "broken out" or "exed out"
from the 8-digit subheading in question. To provide for such
"ex-outs" in the HTSUS, a footnote is created for the 8-digit
subheading in which the merchandise is classified which refers
the reader to chapter 99. In chapter 99, a provision is created
that identifies the specific type of merchandise intended to
receive a free rate of duty.
Subheading 9905.96.10 provides for "plastic tip pens and dry
eraser markers (provided for in subheading 9608.20.00)". There
is no direct correlation between the wording of the two
subheadings. The products in question are packaged as "washable"
markers, and thus clearly do not qualify as "dry erase markers".
In light of the process just described whereby articles in
chapter 99 are identified, eo nomine, and after considering the
anticipated use of the products in question, it is a reasonable
interpretation of subheading 9905.96.10 that these products are
plastic tip markers and not the "plastic tip pens" specified in
the language of that subheading.
HOLDING:
Crayola Classic Washable Markers, Item 58-7809 and Crayola
Scented Markers, Item 58-81192 are classified in subheading
9608.20.00, HTSUS.
The protest regarding Crayola Classic Washable Markers,
item 58-7809, and Crayola Scented Markers, item 58-8192, should
be DENIED.
Insofar as the claims raised in the protestant's letter of
December 1, 1995, relate to entirely different articles which
happened to be part of the overall transaction, these new claims
are untimely pursuant to the provisions of 19 U.S.C. 1514.
However, if, in your determination, you believe the protestant is
requesting reliquidation of the entry to correct a clerical
error, a mistake of fact, or other inadvertence not amounting to
an error in the construction of law, and that adequate
documentary evidence has been
submitted by the protestant, you may consider this letter to be
supplementary claim and protest under the provisions of 19 U.S.C.
1520.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, Revised Protest Directive, dated August 4, 1993, a
copy of this decision attached to Customs Form 19, Notice of
Action, should be provided by your office to the protestant no
later than 60 days from the date of this decision and any
reliquidations of entries in accordance with this decision must
be accomplished prior thereto. Sixty days from the date of this
decision the Office of Regulations and Rulings will take steps to
make this 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
Commercial Rulings Division