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NY L87147




September 9, 2005

CLA-2-96:RR:NC:2:224 L87147

CATEGORY: CLASSIFICATION

TARIFF NO.: 9608.10.0000

Cindy Hazlett
11508 Ohio Avenue Suite 3
West Los Angeles CA 90025

RE: The tariff classification of a novelty ball point pen from China.

Dear Ms. Hazlett:

In your letter dated August 23, 2005, you requested a tariff classification ruling on behalf of Kamhi World.

The merchandise consists of a ball point pen with an implanted sound chip. The button mechanism controlling the pen tip also activates the play of one of seven programmed lines from the movie “Napoleon Dynamite” including “Sweet!,” “Yes!” and “You guys are retarded!” The pen is approximately 51/2 inches in length. Its writing tip is exposed and retracted by engaging the push button at the article’s top. The pen’s shirt clip has the word “sweet!” printed on it. A thermal transfer photo of the character “Napoleon” decorates the surface of the pen. The top of the pen is about ¾ of an inch in diameter and the body tapers down to create a barrel that is comfortable for holding while writing. A rubber strip is located around the body of the pen enabling the fingers to more comfortably grasp the pen. The front of the article’s blister card packaging states “Napoleon Dynamite Official Talking Pen” and “Check out my sweet Talking Pen.” The packaging notes that the batteries activating the sound chip are non-replaceable.

You submit that the primary focus and essential character of the pen is its sound chip “talking feature” and because it is “meant, marketed and sold to amuse the consumer” it is a toy and classifiable in subheading 9503.90.0080, Harmonized Tariff Schedule of the United States (HTSUS) as other toys.

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order.

We view this talking pen as a functioning ball point pen. The physical characteristics of the article demonstrate that it is nothing but a pen with a novelty attribute. The incorporated sound chip makes the pen identifiable as a novelty pen, but nevertheless, a fully functional pen. While we agree the sound chip feature is an attractive marketing tool, this attribute does not transform the article into a toy plaything or detract from the article’s primary purpose as a functional writing instrument. Therefore, we conclude that, pursuant to GRI 1, the talking pen is classifiable under the heading which includes ball point pens, heading 9608, HTSUS.

The applicable subheading for the novelty ball point pen will be 9608.10.0000, HTSUS, which provides for ball point pens. The rate of duty will be 0.8 cents each + 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 Tom McKenna at 646-733-3025.

Sincerely,

Robert B. Swierupski
Director,

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