CLA-2-96:RR:NC:SP:221 G82468
Mr. Sidney H. Kuflik
Lamb & Lerch
233 Broadway
New York, NY 10279
RE: The tariff classification of a combination ball point pen and game from China.
Dear Mr. Kuflik:
In your letter dated September 22, 2000, on behalf of Advance Watch Co. Ltd., you requested a tariff classification ruling.
A sample was provided with your letter. The sample is a “digital game pen” consisting of a ball point pen incorporating a small digital game at the end of the pen. You suggest classification in subheading 9504.90.4000, which provides for articles for arcade, table or parlor games.
Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is in accordance with the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. The submitted merchandise is described under both subheading 9608.10.0000 HTSUS, which provides for ball point pens, and heading 9504, which provides for articles for arcade, table or parlor games. Since classification of the submitted digital game pen in a single heading cannot be determined by applying GRI 1, we must apply the other GRIs. GRI 3 provides for goods that are, prima facie, classifiable in two or more headings. GRI 3(b) provides that mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, shall be classified as if they consisted of the material or component which gives them their essential character.
The submitted merchandise is a composite good made up of an electronic game piece and a standard ballpoint pen. Therefore, the component that imparts the essential character to this article determines its classification.
The Explanatory Notes constitute the official interpretation of the HTSUS at the international level. Explanatory Note (VIII) to GRI 3(b) states in reference to essential character the following:
The factor that determines essential character will vary as between
different kinds of goods. It may, for example, be determined by the
nature of the material or component, its bulk, quantity, weight or value,
or by the role of the constituent material in relation to the use of the goods.
The only factor for which you provided qualifying information among those listed above, in our opinion, is the value. You stated that the game provides over 75 percent of the value of the merchandise. While the greater value of the game is noteworthy, an examination of the article does not support a finding that the role of either component is of such importance as to impart the essential character to the product.
We believe that both the game and the ballpoint pen play an equal role in relation to the use of the merchandise. A digital game pen would not be purchased for just one of its components. If a purchaser wanted this style of pen, there would be no need for the game component. Similarly, if a purchaser wanted an LED digital game device, an article similar to a hand-held game device could be purchased and there would be no need for a ballpoint pen component. In addition, the digital game pen is an integrated article in which the game piece could not be removed from the pen and used separately without damaging the pen.
Since neither of the components, by itself, imparts the essential character to this merchandise, GRI 3(c) is applicable. It states the following:
When goods cannot be classified by reference to 3(b), they shall be
classified under the heading which occurs last in numerical order
among those which equally merit consideration.
As you requested, the sample is being returned.
The applicable subheading for the digital game pen will be 9608.10.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for ball point pens. The rate of duty will be 0.8 cents each plus 5.4 percent ad valorem.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Joan Mazzola at 212-637-7034.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division