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NY N024468




April 3, 2008

CLA-2-96:OT:RR:NC:N2:222

CATEGORY: CLASSIFICATION

TARIFF NO.: 9608.10.0000

Ms. Charise R Graham
Global Logistics and Customs of Charleston, Inc. 238 Mathis Ferry Road
Suite 201
Mt. Pleasant, SC 29464

RE: The tariff classification of a ball point pen with a tally counter from Taiwan

Dear Ms. Graham:

In your letter dated March 6, 2008, on behalf of Enventys, LLC, you requested a tariff classification ruling.

The submitted sample is identified as an Edugrader. The packaging material describes this item as “The smart pen that makes grading faster and more accurate.” It is a working ball point pen that incorporates a liquid crystal display (LCD) screen on one side of the top half of the body of the pen. The Edugrader measures 6-1/8” in length and the LCD screen measures 1” in length by 3/8” in width. This item is powered by three cell button batteries. The ink cartridge of the pen measures 3-7/8” in length and is replaceable. The ball point section of the ink cartridge extends from the tip of the pen or retracts back into the tip of the pen by manually rotating the tip of the pen.

There are three switch type buttons on the body of the pen. One is a power button that operates as an on/off switch. The second is an add/subtract button that is designed for the purpose of inputting the total number of questions on a test exam that is to be graded. The third button is a “wrong answer” button. This button is pressed every time a wrong answer is reviewed. The Edugrader keeps a running tally of all wrong answers that are input individually and subtracts them from the total number of questions. However, it is not a calculating device because it cannot add or subtract two arbitrary numbers. The LCD screen displays the total number of incorrect answers, the total number of correct answers, the total number of questions and the percentage of the total number of questions that were answered correctly. As you requested, the sample will be returned to you.

This item is considered to be a composite good within the meaning of General Rule of Interpretation 3. GRI 3(a) states, in part, “when two or more headings each refer to part only of the materials or substances contained in mixed or composite goodsthose headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.”

Heading 9608 refers, in part, to ball point pens. Heading 9029 refers, in part, to revolution counters, production counters, taximeters, odometers, pedometers and the like. In the instant case, each of these headings refer to only part of this composite good, and therefore, each heading must be regarded as equally specific in relation to the good. Thus, we must turn to GRI 3(b) which states in part, “composite goodsmade up of different componentswhich cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.”

However, it is the opinion of this office that in the instant case, neither the ball point pen nor the tally counter imparts the essential character of the whole. Both features of the Edugrader have equal utility and items of similar functions are usually sold separately as individual entities. The instruction insert that is included with the Edugrader lists the steps involved in using this item to grade a test exam. After tallying the correct and incorrect answers with the tally counter, the last step specifically states “When you finish grading the test or assignment, write down the score and any other information you wish to record.” Obviously, this last step would be performed using the ball point pen. Therefore, GRI 3(c) applies. This rule states “When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.”

The applicable subheading for the Edugrader will be 9608.10.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for ball point pens. The rate of duty will be 0.8 cents each plus 5.4 percent ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

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 Gary Kalus at 646-733-3055.

Sincerely,

Robert B. Swierupski
Director,

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