CLA-2 CO:R:C:M 088354 MBR
District Director
U.S. Customs Service
Suite 625
7911 Forsythe Blvd
St. Louis, Missouri 63105
RE: Protest No. 4503-0-000016, dated 6/22/90; Mechanical Pencil;
Mechanical Action; 9608
Dear Sir:
This is our response regarding Further Review of Protest No.
4503-0-000016, dated June 22, 1990, which pertains to the
classification of a "SenseMatic" automatic pencil, imported from
Taiwan by the Dixon Ticonderoga Company, under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA).
FACTS:
The "SenseMatic" pencil has a plastic body intended to
simulate a wooden pencil. This automatic pencil operates by
placing lead in the interior guide channel, which houses a metal
spring and two metal ball bearings, which automatically advance
the lead as the pencil is used.
ISSUE:
Whether the article in question is classifiable within
subheading 9608.40.40, HTSUSA, which provides for "[p]ropelling
or sliding pencils (for example, mechanical pencils): [w]ith a
mechanical action for extending, or for extending and retracting,
the lead"; or within subheading 9608.40.80, HTSUSA, which
provides for "[p]ropelling or sliding pencils (for example,
mechanical pencils): [o]ther," as claimed.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's). GRI 1 provides
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that classification is determined first in accordance with the
terms of the headings of the tariff and any relative section or
chapter notes.
You argue that the article in question is "a substantially
different item than the mechanical pencils usually classified
under HTUS 9608.40.40." Further, you argue: "Inasmuch as the
lead is self-propelled to the writing tip, without the presence
of any mechanical action, classification is appropriate under
HTUS 9608.40.80."
In support of your argument, you cite the Harmonized
Commodity Description and Coding System Explanatory Notes (ENs)
for heading 8210, HTSUSA, page 1112, which state:
This heading covers non-electric mechanical appliances,
generally hand-operated, not exceeding 10 kg in weight, used
in the preparation, serving or conditioning of food or
drink.
For the purposes of this heading an appliance is regarded as
mechanical if it has such mechanisms as.... (Emphasis
added).
The EN to heading 8210, HTSUSA, is clearly limited to
heading 8210, HTSUSA, by the language: "For the purposes of this
heading...." Thus, it has no relevance in determining the
classification of the merchandise under consideration.
Whereas, the ENs to heading 9608, HTSUSA, page 1607, state:
This heading covers:
(5) Propelling pencils or sliding pencils, single or
multilead type; including the spare leads normally
contained therein.
You agree that the instant merchandise is classifiable under
heading 9608, HTSUSA. However, you argue that the "SenseMatic"
automatic pencil does not utilize "mechanical action for
extending...the lead," as required by subheading 9608.40.40,
HTSUSA.
The "SenseMatic" automatic pencil advances the lead by the
mechanical action of pressing the lead against the paper, which
depresses the plastic tip, which in turn utilizes a spring and
ball bearings to advance the lead and hold it in place. In fact,
the action of depressing the lead against the paper acts in the
same manner as do common mechanical action pencils whereby the
user advances the lead by depressing a button, only here, the tip
is in fact the button that is depressed.
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Therefore, it is Customs position that the "SenseMatic"
automatic pencil does utilize a mechanical action for extending
the lead, and is properly classifiable under subheading
9608.40.40, HTSUSA, which provides for: "[b]all point pens;
propelling or sliding pencils (for example, mechanical pencils):
[p]ropelling or sliding pencils (for example, mechanical
pencils): [w]ith a mechanical action for extending, or for
extending and retracting, the lead."
HOLDING:
The "SenseMatic" automatic pencil is properly classifiable
under subheading 9608.40.40, HTSUSA, which provides for: "[b]all
point pens; propelling or sliding pencils (for example,
mechanical pencils): [p]ropelling or sliding pencils (for
example, mechanical pencils): [w]ith a mechanical action for
extending, or for extending and retracting, the lead."
The protest is denied in full. A copy of this decision
should be attached to the Form 19 Notice of Action.
Sincerely,
John Durant, Director
Commercial Rulings Division