CLA-2 OT:RR:CTF:TCM H166875 JPJ
John M. Peterson
Neville Peterson LLP
17 State Street, 19th Floor
New York, New York 10048-0945
RE: Request for Binding Ruling; Classification of Push Pencils a/k/a Stackable Pencils or Non-Sharpening Pencils
Dear Mr. Peterson:
This is in response to your request for a binding ruling dated April 7, 2011, on behalf of your client, Target Corporation (“Target”), concerning the classification of certain push- pencils a/k/a non-sharpening pencils. Samples of the merchandise have been provided and will be returned.
FACTS:
The merchandise is described as push-pencils a/k/a stackable pencils or non-sharpening pencils. They consist of a cartridge-style plastic holder/barrel approximately five inches long which is tapered at one end and capped at the other. The barrel houses a series of nine pencil tips of lead partially encased in a tapered plastic cap with ridges. The lead points are approximately ¾ inch long. The plastic encasing for each pencil tip has a cavity at the end opposite the lead so that it can receive another one of the lead pencil tips. They are held in place on the one hand by the barrel cap and on the other hand by the friction of the aforementioned plastic cap with ridges against the tapered portion of the barrel. A cap with an eraser completes the merchandise. The merchandise is illustrated as follows:
The push-pencils are operated by removing the worn point encased in plastic from the writing end of the barrel, and inserting it into the point in the opening in the barrel's cap, thereby forcing the remaining encased lead points within the barrel forward, so that a new lead point extends from the writing end of the barrel. This process is further illustrated below:
ISSUE:
Are push-pencils a/k/a stackable pencils or non-sharpening pencils classifiable in heading 9608, HTSUS, or heading 9609, HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRI's are applied taken in order.
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 (for example, mechanical pencils); pen-holders, pencil-holders and similar holders; parts (including caps and clips) of the foregoing articles, other than those of heading 9609.
9609 Pencils (other than those pencils of heading 9608), crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors’ chalks.
The Harmonized Commodity Description and Coding System Explanatory Notes ("EN’s") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s 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. 35127-28 (Aug. 23, 1989).
The EN 96.09 states, in relevant part, as follows:
The articles of this heading are of two types:
. . .
(B) 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:
. . .
(6) Pencils and crayons, with leads encased in a rigid sheath.
. . .
There is no dispute that the merchandise are pencils classified in chapter 96, HTSUS.
You argue that the push-pencils are classified under heading 9608, HTSUS, as “propelling or sliding pencils”, and note that prior CBP rulings have classified similar merchandise under heading 9609, HTSUS, as “pencils (other than those pencils of heading 9608)”. See e.g., NY K86555, dated June 9, 2004; and NY L83539, dated April 7, 2005. See also, NY N082298, dated November 5, 2009; and HQ 951918, dated April 13, 1993.
At the heading level, we must first determine whether the merchandise is a “propelling or sliding pencil” of heading 9608, HTSUS. If it is a pencil described by heading 9608, HTSUS, then it is not a pencil of heading 9609, HTSUS.
Heading 9608, HTSUS, is an eo nomine provision, which “describes a commodity by a specific name, usually well known to commerce.” See Ruth F. Sturm, Customs Law & Administration § 53.2 at 2 (Supp. 1995) (citing United States v. Bruckmann, 65 C.C.P.A. 90, C.A.D. 1211, 582 F.2d 622, 625 n.8 (1978)). “The clear weight of the authorities on the subject is that an eo nomine statutory designation of an article, without limitations or a shown contrary legislative intent, judicial decision, or administrative practice to the contrary, and without proof of commercial designation, will include all forms of said article.” Nootka Packing Co. v. United States, 976 F.2d 693, 697 (Fed. Cir. 1992) (“Tariff terms contained in the statutory language ‘are to be construed in accordance with their common and popular meaning, in the absence of contrary legislative intent.’”) (Citations omitted).
You argue that push-pencils are “closely associated” with mechanical pencils and ball point pens. You explain that mechanical pencils are typically sold, pre-stocked with a few sticks of lead that slide forward as the user manipulates the mechanical action for extending the lead. As the user writes, the pre-stocked lead will eventually run out. This forces the user to either purchase a new mechanical pencil or purchase lead refills. You argue this is exactly the situation for push-pencil users: either discard the article, or purchase lead refills.
You also argue that the push-pencils are “sliding pencils”, because the lead slides forward to the writing position. While you agree that the push-pencils do not have a mechanical action, you argue nonetheless that the sliding is done manually, by manipulation of the “nibs”. Therefore, you conclude that push-pencils are classifiable under heading 9608, HTSUS, as “propelling or sliding pencils”.
The term “propelling or sliding pencils” is not defined in either the Section or Chapter Notes or the ENs. In cases where a term is not defined in the Section Notes, Chapter Notes or the ENs of the HTSUS, it is construed in accordance with its common and commercial meaning. Unless a contrary legislative intent is shown, tariff terms are construed in accordance with their common and commercial meanings, which are presumed to be the same. Nippon Kogaku (USA), Inc. v. United States, 673 F.2d 380, 382 (1982); Schott Optical Glass, Inc. v. United States, 612 F.2d 1283, 1285 (1979). Absent an express definition, however, dictionaries, lexicons, scientific authorities, and other such reliable sources may be consulted to determine common meaning. C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271 (1982).
According to the online Oxford English Dictionary at www.oed.com, a “propelling pencil” is defined as:
n. a type of pencil consisting of a plastic or metal casing containing a thin, replaceable lead that may be projected or retracted.
According to this same dictionary, in American English, a “propelling pencil” is also known as a “mechanical pencil”. A “mechanical pencil” is defined as:
n. U.S. a pencil having a mechanism by means of which a lead can be extended as it wears down, or retracted after use; cf. propelling pencil n. at propelling adj.
Finally, although the term “sliding pencils” is not defined in this same dictionary, the adjective “sliding” is defined as:
3a. That moves by sliding or slipping; flowing, gliding, etc.
We have also consulted www.davesmechanicalpencils.blogspot.com, an on-line resource on mechanical pencils, which explains that mechanical pencils are known by many alternative names, some of the most common alternatives being propelling pencil, automatic pencil, drafting pencil, technical pencil, clicky pencil, lead or led pencil, clutch pencil and leadholder. This source also indicates that the term mechanical pencil is generally of American English origin. Finally, mechanical pencils can be divided into two basic types by mechanism: those that only hold the lead (clutch pencils) in position, and those that hold and propel the lead.
According to this resource, the first type, the clutch pencil, is a mechanical pencil that typically uses a thicker piece of lead and has a set of jaws that clamp the lead at the tip. The jaws are typically opened by pressing down the top cap which in turn allows the lead to freely drop through the barrel. They can typically only carry one whole stick of lead at a time. CBP has classified clutch pencils, which hold but do not propel the lead, as “propelling or sliding pencils” in heading 9608, HTSUS, specifically subheading 9608.40.80, which provides for “Ball point pens; felt tipped and other porous-tipped pens and markers; fountain pens, stylograph pens and other pens; duplicating styli; propelling or sliding pencils (for example, mechanical pencils); . . .Propelling or sliding pencils (for example, mechanical pencils): Other”. See HQ 961069, dated April 16, 1998.
As for the second type, based upon our research at www.ehow.com, we have learned that a “mechanical pencil” contains an internal mechanism which propels lead through the tip. Several types of mechanisms are used in mechanical pencils, with the most common being the ratchet type mechanical pencil. In these pencils, lead is pushed forward in small increments when one clicks a button on the pencil end or side. This mechanism includes small jaw pieces which separate and allow the lead to move forward, and a rubber device at the tip which holds the lead in place to stop it from falling out or sliding back upward. Another type of mechanical pencil is a screw-based pencil, where one propels the lead forward by turning a screw, which pushes a slider down the pencil barrel. Twist mechanical pencils allow one to move the lead forward and backward for a precise length of lead, and to retract it when finished to keep the lead tip from breaking. Mechanical pencils create lines of consistent thickness and are often favored for technical drawing and graphic art.
While we agree that the push pencils do not operate by mechanical action for extending or retracting the lead, we do not agree that push pencils are “propelling or sliding pencils (for example, mechanical pencils)” of heading 9608, HTSUS. Unlike the mechanical pencil called the clutch pencil described supra, the push pencils do not contain an internal mechanism that allows the lead point to freely drop through the barrel. Instead, the push-pencil is operated by physical manipulation. The push-pencil is operated “manually” by physically pulling a worn or blunt lead point out of the writing end of the pencil, and re-inserting and pushing it into the top of the pencil so that a completely new lead point is pushed out of the writing end of the pencil.
Based on the above we conclude that the subject push-pencils are not “propelling or sliding pencils” provided for in heading 9608, HTSUS. Since the push-pencils are not pencils described by heading 9608, HTSUS, they are pencils classifiable in heading 9609, HTSUS. We note your argument that pencils of subheading 9609.10, HTSUS, must be pencils “with leads encased in a rigid sheath”. However, while this argument may be relevant to a GRI 6 analysis, it is not persuasive in this matter, which pertains to the heading level and is controlled by GRI 1.
This determination is consistent with CBP precedent classifying similar merchandise in heading 9609, HTSUS. See NY K86555, dated June 9, 2004; NY L83539, dated April 7, 2005; NY N082298, dated November 5, 2009; and HQ 951918, dated April 13, 1993.
HOLDING:
The push-pencils a/k/a non-sharpening pencils are classified under heading 9609, HTSUS, specifically under subheading 9609.10.00, HTSUS, as “Pencils (other than those pencils of heading 9608), crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors’ chalks: Pencils and crayons, with leads encased in a rigid sheath”. The 2014 general column one rate of duty is 14¢/gross + 4.3% ad valorem.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at http://www.usitc.gov/tata/hts/.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch