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HQ 959005

February 12, 1998

CLA-2 RR:CR:GC 959005ptl


TARIFF NO.: 9608.20.00

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.


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.).


Whether the markers are properly included in the NAFTA subheading for plastic tip pens and dry erase markers.


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.


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.


John Durant, Director
Commercial Rulings Division

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