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HQ 960828

July 14, 1998

CLA-2 RR:CR:GC 960828ptl


TARIFF NO.: 9608.10.00

Louis S. Shoichet, Esq.
Tompkins & Davidson, LLP.
One Astor Plaza
1515 Broadway
New York, NY 10036-7900

RE: Stamper Bubble Pen; NY 818082; HQ 958751.

Dear Mr. Shoichet:

This is in response to the letter of July 15, 1997, to the then Area Director of Customs, New York, NY, requesting a ruling on behalf of your client, Avon Products, Inc., on the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a novelty pen. The letter and sample were forwarded to this office for a response.


The merchandise is a ball point pen, approximately 6 inches in length, containing a capped writing tip with a 1« inch ink reservoir at one end, and a detachable self-inked stamper with a cap at the other end. The clear plastic barrel of the pen contains bubble solution and a bubble blowing wand. The stamper cap forms the handle of the bubble wand and screws into the barrel of the pen.


Whether the Stamper Bubble Pen is properly classified as a toy, a pen, or a date, sealing or numbering stamp article.


Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied in order.

Inspection of the article reveals that it is a composite article and that each of the components of the article are classifiable under a different heading within the Harmonized Tariff Schedule of the United States. Because the item is a composite good, we turn to GRI 3(b) which states that when goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a) [by reference to the heading which provides the most specific description], shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Under GRI 3(c), when goods cannot be classified by reference to GRI 3(a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

The headings under consideration are as follows:

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:

9503.90.00 Other

9608 Ball point pens; felt tipped and other porous- tipped pens and markers; fountain pens, stylo- graph pens and other pens; duplicating styli; propelling or sliding pencils (for example, mechanical pencils); pen-holders, pencil-holders and similar holders; parts (including caps and clips) of the foregoing articles, other than those of heading 9609:

9608.10.00 Ball point pens

9611.00.00 Date, sealing or numbering stamps and the like, (including devices for printing or embossing labels), designed for operating in the hand; hand-operated composing sticks and hand printing sets incorporating such composing sticks.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Under EN Rule 3(b)(VII), goods are to be classified as if they consisted of the material or component which gives them their essential character.

The submission proposes that because of the bubble wand and bubble solution in the barrel of the pen, the article be classified as a toy under heading 9503, HTSUS. You contend that these components provide manipulative play value or frivolous characteristics of toys and serve as the primary focus of the article. Further, the bubble wand and solution provide the article with its essential character.

The submission refers to HQ 958751, issued December 24, 1996, to support your contention that the article should be classified as a toy. However, the "Talkboy F/X Recording Pen" (Talkboy) which was the subject of that ruling can easily be distinguished from the article currently under consideration. With a stated retail price of $20.00, the Talkboy article was comparatively highly priced for a writing instrument. Most of that cost was associated with an electronic memorandum device and other sound producing devices which were incorporated into the pen. Customs believes that the significant cost differences of the components and audio capabilities of the Talkboy were determinative factors which resulted in the decision that its amusement features outweighed its utilitarian functions. In this article, you have provided no evidence that the cost of the bubble wand and bubble solution are significantly greater than the costs of the other components.

The next aspect of HQ 958751 raised is the relative size of ink reservoirs in ball point pens and the availability of refills. Customs does not believe these elements should be accorded great weight. We note that many fully functional ball point pens which are neither capable of nor intended to be refilled are marketed. Thus, the availability of refills should not determine whether a ball point pen is functional. Additionally, we should also look to the capability of re-inking of the article's stamp or refilling the container with bubble solution when questioning functionality of this article. Neither of these elements of the article appear to be readily revived once the originally provided supply has been used. When all components are considered, the primary functional element of the article clearly is the writing component of the ball point pen.

In NY 818082, issued January 11, 1996, Customs classified a similar item in subheading 9608.10.00, HTSUS. That item was composed of a ball point pen with cap at one end, a self-inked stamper with cap at the other. That item also had a bubble blowing wand which fitted inside the barrel of the pen and was attached to the stamper end. In that ruling, Customs determined that the pen component gave the article its essential character. From an examination of the sample provided, it appears that this item is extremely similar to that described in NY 818082. Based on the discussion above, Customs agrees with that ruling.


In accordance with the above discussion, the article referred to as a "Stamper Bubble Pen" is classified in subheading 9608.10.00, HTSUS, as a ball point pen.


John Durant, Director
Commercial Rulings Division

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