CLA-2 OT:RR:CTF:CPM H293295 CkG
Wanda Habrial
Binney & Smith, Inc. 1100 Church Lane
Easton PA 18043
Re: Revocation of NY R00817; classification of twistable colored pencils
Dear Ms. Habrial:
This is in reference to New York Ruling Letter (NY) R00817, issued to you on September 16, 2004, concerning the classification of Crayola twistable colored pencils. For the reasons set forth below, we have determined that the classification of the colored pencils in heading 9609, HTSUS, was incorrect.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)),
as amended by section 623 of Title VI, notice proposing to revoke NY R00817 was published on November 14, in Volume 52, Number 46, of the Customs Bulletin. No comments were received in response to this Notice.
FACTS:
In NY R00817, the subject merchandise was described as follows:
The merchandise consists of twistable colored pencils. The pencils are composed of a clear plastic barrel with a colored lead inserted that is refreshed by twisting the end of the barrel.
The mechanism of action consists of a spring that encircles the writing core and holds it in place; as the end of the barrel is twisted, the spring moves forward, carrying the writing core with it. When twisting in the other direction, the movement is reversed.
ISSUE:
Whether the instant articles are classified as propelling pencils in heading 9608, HTSUS, or in heading 9609, HTSUS, as crayons or as pencils other than those of heading 9608, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings 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 or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.
The HTSUS provisions under consideration are as follows:
9608: Ball point pens; felt tipped and other porous tipped pens and markers; fountain pens, stylograph pens and other pens; duplicating stylos; propelling or sliding pencils; pen holders, pencil holders and similar holders; parts (including caps and clips) of the foregoing articles, other than those of heading 96.09.
9608.40: Propelling or sliding pencils:
9608.40.40: With a mechanical action for extending, or for extending and retracting, the
lead…
9608.40.80: Other....
9609: Pencils (other than those pencils of heading 9608), crayons, pencil leads, pastels, drawing
charcoals, writing or drawing chalks and tailors' chalks:
9609.10.00: Pencils and crayons, with leads encased in a rigid sheath…
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs 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).
EN 96.08 provides, in pertinent part, as follows:
This heading covers :
…
(5) Propelling pencils or sliding pencils, single or multilead type; including the
spare leads normally contained therein.
EN 96.09 provides, in pertinent part, as follows:
The articles of this heading are of two types :
Those without any covering or simply covered with a protective band of paper (e.g.,
chalks, drawing charcoals, pencil leads, certain crayons, pastels, and slate pencils).
Pencils and crayons, with leads encased in wood or plastics or in some cases in a
sheath composed of layers of paper.
The heading includes :
(1) Slate pencils of natural or agglomerated slate.
…
(5) Crayons and pastels, usually made of a mixture of chalk or clay, colouring matter,
shellac or wax, spirit and turpentine.
(6) Pencils and crayons, with leads encased in a rigid sheath.
* * * *
In NY R00817, CBP classified twistable colored pencils in heading 9609, HTSUS, which provides for “Pencils (other than pencils of heading 96.08), crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors’ chalks.” By the terms of the heading, pencils can only be classified in heading 9609 if they are not otherwise provided for in heading 9608, HTSUS. Heading 9608, in turn, provides for, inter alia, “propelling or sliding pencils”. Thus, we must first consider whether the instant articles are classified in heading 9608, HTSUS; if so, then they cannot be classified in heading 9609, HTSUS.
Crayons are classified in heading 9609, HTSUS; colored pencils are classified in heading 9608, HTSUS, if mechanical (i.e., “propelling pencils”), and in heading 9609, HTSUS, if they have no mechanical features. None of the terms “pencil”, “crayon” or “propelling pencil” are defined in the HTSUS or the ENs. In cases where tariff terms are undefined, they are to be construed in accordance with their common and commercial meanings which are presumed to be the same (Nippon Kogaku, Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380 (1982); see also Nylos Trading Company v. United States, 37 CCPA 71, 73, C.A.D. 423 (1949), and Winter-Wolff, Inc., v. United States, CIT Slip Op. 98-15 (Customs Bulletin and Decisions, March 25, 1998, vol. 32, no. 12, 71, at 74, "When, however, a tariff term is not clearly defined by the statute or its legislative history, it is also fundamental that the correct meaning of the tariff term is ‘presumed to be the same as its common or dictionary meaning in the absence of evidence to the contrary’").
“Pencil” is variously defined as “an instrument for writing or drawing, consisting of a thin stick of graphite or a similar substance enclosed in a long thin piece of wood or fixed in a metal or plastic case”, or “an implement for writing, drawing, or marking consisting of or containing a slender cylinder or strip of a solid marking substance.”
“Propelling pencil”, in turn, is chiefly a British term synonymous with “mechanical pencil” in U.S. usage. See e.g., Macmilan Dictionary Online (“a pencil made from plastic or metal rather than wood that is always sharp and ready to write with. The British word is propelling pencil.”); see also Cambridge English Dictionary Online: “noun [ C ] UK ? /pr??pel.?? 'pen.s?l/ US ? /pr??pel.?? 'pen.s?l/ uk us mechanical pencil” (emphasis added). A “propelling” or “mechanical” pencil is simply “a pencil made of metal or plastic with a lead that is moved forward by a mechanical device”, or “a pencil in which the lead is pushed out by turning or pressing a part of the pencil.” Mechanical pencils are also sometimes described as having replaceable or refillable lead. See e.g., Oxford English Dictionary Online (“a pencil with a plastic or metal case and a thin replaceable lead that may be extended as the point is worn away by twisting the outer casing”. The common element of all definitions of “propelling” or mechanical” pencil, however, is that lead is “propelled” forward via mechanical action. The inability to replace or refill the lead in a pencil using mechanical action to propel the lead forward therefore does not, in our estimation, preclude classification in heading 9608, HTSUS.
“Crayon” is only vaguely defined, as “a stick of white or colored chalk or of colored wax used for writing or drawing”, or “[a] pointed stick or pencil of coloured chalk or other material, for drawing.” Products marketed and known in the channels of trade as “crayons” are blunt, thick sticks of colored wax used for drawing or coloring. The terms of heading 9609, specifically subheading 9609.10.00, HTSUS, further provide for, inter alia, crayons enclosed in a rigid sheath.
In addition, we note that Crayola’s colored pencils are made by mixing extenders, binder, pigment and water, which after mixing, are rolled into flat sheets, and pressed into cylinder shapes called cartridges. The cartridges are extruded and cut to size to create to the pencil lead. Crayola crayons, on the other hand, are made from paraffin wax, pigment, and small amounts of other ingredients, which are poured into a mold until solidified.
The Crayola twistable colored pencils are writing or drawing instruments consisting of a solid marking substance enclosed in a rigid sheath; they therefore fall squarely within the definitions of “pencil” set out above. We further note that, in contrast to Crayola’s twistable crayons, the instant articles are marketed and advertised as pencils. The instant articles are therefore pencils made of plastic with a lead that is moved forward by a mechanical device—specifically, by twisting the bottom of the pencil, which moves the attached spring forward, carrying the core with it. This mechanical action places the instant pencils squarely in the “twist” category of mechanical/propelling pencils, classified in heading 9608, HTSUS, specifically subheading 9608.40.40, HTSUS.
As the instant articles are prima facie classifiable as pencils of heading 9608, HTSUS, it is unnecessary to further consider whether they could also be considered crayons of heading 9609, HTSUS; by the terms of headings 9608 and 9609, any article which could conceivably be described in both headings must be classified in heading 9608, HTSUS, at GRI 1.
In contrast, we note that articles such as Crayola’s twistable crayons, which are too thick to be used in the manner of a pencil—i.e., for detailed drawing, writing or coloring—are correctly classified in heading 9609, HTSUS, because they do not meet the terms of heading 9608, HTSUS. See NY J81304, dated February 20, 2003, classifying Crayola twistable crayons in heading 9609, HTSUS.
HOLDING:
The twistable colored pencils are classified in heading 9608, HTSUS, specifically
subheading 9608.40.40, HTSUS, which provides for “Ball point pens; felt tipped and other porous tipped pens and markers; fountain pens, stylograph pens and other pens; duplicating stylos; propelling or sliding pencils; pen holders, pencil holders and similar holders; parts (including caps and clips) of the foregoing articles, other than those of heading 96.09: Propelling or sliding pencils: With a mechanical action for extending, or for extending and retracting, the lead.” The 2018 column one, general rate of duty is 6.6% 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 online at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY R00817, dated September 16, 2004, is hereby revoked.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division