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NY K85540




May 14, 2004
CLA-2-96:RR:NC:2:224 K85540

CATEGORY: CLASSIFICATION

TARIFF NO.: 9608.10.0000

Ms. Ronna Martfeld
Wal Mart Stores, Inc
601 N. Walton
Bentonville, AR 72716-0410

RE: The tariff classification of a R C Racer pen and a G. I. Joe Figure pen from China

Dear Ms. Martfeld:

In your letter dated April 22, 2004, you requested a tariff classification ruling.

You are requesting the tariff classification on two items that are described as follows: a RC Racer pen, V/S# 08512, a molded plastic pen with an infra-red remote controlled micro car; and a G. I. Joe Figure pen, V/S# 01902, a molded plastic pen designed to resemble a Tactical Advisor. Your samples will be returned, as requested. The items are each made up of two components: a toy component and a ballpoint pen component. No one heading in the tariff schedule covers these components in combination; GRI 1 cannot be used as a basis for classification. 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 consists of two composite goods. The first, # 08512, is made up of a ball point pen and a toy car. The pen is an integrated controller for the car, as well as a ballpoint pen. The second, # 01902, is composed of a G. I. Joe figure with a workable ballpoint pen integrated into the toy figure.

We believe that for both submitted samples the toy and the ballpoint pen play an equal role in relation to the use of the merchandise. A novelty pen would not be purchased for just one of its components. In addition, the toy portion of each novelty pen is integrated into the pen. In the case of the RC Racer pen, the car cannot operate without the pen portion. The G. I. Joe pen would be damaged in the process of separating the pen from the toy figure.

Since neither of the components, for each item, by itself, imparts the essential character to this merchandise, GRI 3 (c) is applicable. GRI 3 (c) provides that when the essential character of a product cannot be determined, the product shall then be classified under the heading that occurs last in numerical order in the tariff, among those which merit equal consideration. The competing headings for the RC Racer and G. I. Joe novelty pens are 9502 HTS, 9503 HTS and 9608 HTS.

This office considers each of the novelty pens (RC Racer pen and G. I. Joe pen) to be a composite good that possesses no essential character. Therefore, both items will be classified in Chapter 96 of the HTS, in accordance with GRI 3 (c).

Since it has been determined that the merchandise will not be classified on the basis of essential character, neither the tariff provision for dolls (9502 HTS), nor the tariff provision for other toys (9503 HTS) would be appropriate for either of these two items.

The applicable subheading for the RC Racer Pen, V/S#08512, and the G. I. Joe Figure Pen, V/S# 01902, will be 9608.10.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for ball point pens. The general rate of duty will be 0.8¢ each + 5.4 % 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 Tom McKenna at 646-733-3025.

Sincerely,

Robert B. Swierupski
Director,

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