CLA-2-96:OT:RR:NC:N4:462
Norma A. Floriano
OOLY
5607 Palmer Way
Carlsbad, CA 92010
RE: The tariff classification of a watercolor pencil set and graphite pencils from China.
Dear Ms. Floriano:
In your letter dated November 3, 2022, you requested a tariff classification ruling. Images and descriptive information were provided.
The first item under consideration is item number 128-148, the “Chroma Blends Mechanical Watercolor Pencil Set.” The set consists of eighteen watercolor pencils containing a watercolor soluble 2.00 mm lead, a box of 18 water soluble colored lead refills for replacement, and a small paint brush.
The pencils are comprised of a plastic barrel containing a plastic tube that holds the watercolor pencil lead. Within the barrel is a small plastic collar that has been slightly cut open and functions as a prong, which will then allow the release of the lead. Surrounding this collar is a small metal spring. At the top end of the pencil is a cap that the user can pull off to allow for the lead refills to be inserted. The cap also serves as a push mechanism for the lead extraction with a spring action. To operate the pencil, the user pushes down on the cap which, in turn, pushes down on the tube allowing the prongs to spread apart, thereby releasing the pencil lead. To retract the lead, the cap is depressed again, and the lead can be manually pushed back into the pencil with a finger or other item. This set is packaged in a retail box with a clear plastic panel.
The second item under consideration is item number 128-156, identified as “Noted Graphite Mechanical Pencils.” This includes six distinct color pencils with extra thick graphite leads (2.0 mm). The pencils include a plastic sharpener built into the cap. The pencils function the same way as those described above.
Although the pencils in both items under consideration are referred to as mechanical pencils in your letter, they are not considered mechanical for tariff purposes. These types of propelling pencils are commonly known as clutch pencils because the lead is clutched by prongs. It is not a “twist” pencil, which usually contains a ball-screw mechanism that extends and retracts the lead when a portion of the pencil is twisted. Customs has long distinguished between pencils which have internal twist mechanisms for propelling the pencil lead and clutch pencils in which the pencil lead is held in place by prongs. Customs has consistently held that spring operated prongs which grasp the pencil lead are not considered mechanical devices for classification purposes, as the lead is advanced by a manual process. See Headquarters (HQ) Ruling 961069 dated April 16, 1998.
The “Chroma Blends Mechanical Watercolor Pencil Set” will be sold and marketed as a set, and the product will be considered a set for tariff purposes. No one heading in the tariff schedule covers these components in combination; thus, General Rule of Interpretation (GRI) 1 cannot be used as a basis of classification. GRI 3 provides for goods that are, prima facie, classifiable in two or more headings. GRI 3(b) provides that mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale shall be classified as if they consisted of the material or component which gives them their essential character.
Noting GRI 3(b), the component that gives the set its essential character would dictate the classification of the set. The essential character of this set is imparted by the pencils, which predominate both in use and bulk. Therefore, the applicable subheading for the “Chroma Blends Mechanical Watercolor Pencil Set” will be 9608.40.8000, Harmonized Tariff Schedule of the United States (HTSUS), 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); pen-holders, pencil-holders and similar holders; part (including caps and clips) of the foregoing articles, other than those of heading 9609: Propelling or sliding pencils (for example, mechanical pencils): Other.” The rate of duty will be free.
The “Noted Graphite Mechanical Pencils” are a composite good that includes a pencil and a built-in sharpener. The essential character of this item is imparted by the pencil, which predominates both in use and bulk, GRI 3(b) noted. Therefore, the applicable subheading for “Noted Graphite Mechanical Pencils” will be 9608.40.8000, HTSUS, 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); pen-holders, pencil-holders and similar holders; part (including caps and clips) of the foregoing articles, other than those of heading 9609: Propelling or sliding pencils (for example, mechanical pencils): Other.” The rate of duty will be free.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 9608.40.8000, HTSUS, unless specifically excluded, are subject to an additional 7.5 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.15, in addition to subheading 9608.40.8000, HTSUS, listed above.
The HTSUS is subject to periodic amendment, so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, including information on exclusions and their effective dates, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china respectively.
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 the World Wide Web at https://hts.usitc.gov/current.
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, please contact National Import Specialist Sandra Sary at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division