Mr. Sean McClung
Liberty International Inc.
470 Main Street
Pawtucket, RI 02860

RE: The tariff classification of a ball point pen with an alternative clutch pencil cartridge from China

Dear Mr. McClung:

In your letter dated September 14, 2010, on behalf of A.T. Cross Company, you requested a tariff classification ruling.

The submitted sample is identified as a Switch-It. This item is a ball point pen that is imported with an additional 0.7 mm clutch pencil cartridge, packaged together for retail sale. As imported and packaged, the pen cartridge is in place within a barrel and cap housing. The ball point tip is exposed or retracted by turning the cap either clockwise or counterclockwise. As you requested, the sample will be returned to you.

The clutch pencil cartridge is separately placed within the packaging. It is designed to be used as a replacement for the pen cartridge within the pen barrel and cap, as an alternative. The pencil cartridge operates with an internal jaw mechanism that grabs and releases the internal writing core. To retract the writing core back into the cartridge, it must be manually pushed back. The cartridge also has an eraser tip.

However, it appears that the only method that can be used to lock the exposed writing core in place is when it is within the pen barrel and cap, by way of twisting the cap. Therefore, the clutch pencil cartridge is not considered to be a clutch pencil on its own, but is a replacement cartridge. As such, this office agrees with your suggestion that this item would not be correctly classified in subheading 9608.50.0000, because that classification provides for sets of two or more writing instruments.

You have suggested that the articles of this item are correctly classified separately in subheading 9608.10.0000, which provides for ball point pens and subheading 9608.99.6000, which is a residual classification that provides for a variety of writing instrument parts not elsewhere provided for in heading 9608. You have cited New York Ruling Letter (NY) C89203 as support for your suggestion. However, that ruling did not address a complete writing instrument and all articles that were the subject of that ruling were parts.

Although this item does not meet the terms of the set provision of subheading 9608.50.0000, it is considered to be "goods put up in sets for retail sale" within the meaning of General Rule of Interpretation (GRI) 3 and each set is classifiable under a single tariff provision.

The pen cartridge is imported and sold within the barrel and cap and the clutch pencil cartridge is packaged and marketed as an alternative. In fact, an instructional leaflet within the packaging references the barrel as a pen barrel even when it instructs to load the pencil cartridge into it. The marks that a pen leaves are obviously much more permanent than that of a pencil. Also, the clutch pencil is not as easy to advance within the barrel and cap mechanism as is the pen cartridge. Therefore, it is the opinion of this office that the pen alternative provides the essential character within the meaning of GRI 3(b). See NY J80014 dated January 15, 2003.

The applicable subheading for the Switch-It 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

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.


Robert B. Swierupski
National Commodity Specialist Division