Ms. Lorianne Aldinger
Rite Aid Corporation
P.O. Box 3165
Harrisburg, PA 17105
RE: The tariff classification of pens, propelling pencils with refills and highlighters from India
Dear Ms. Aldinger:
In your letter dated March 12, 2013, you requested a tariff classification ruling.
The submitted sample is identified as a Writing Value Pack 8 Count, Item Number 9025618. It consists of three propelling pencils, three ball point pens and two porous tipped highlighters. Each of these eight articles has a clip on one side of the upper portion of the article that is designed to enable the article to hang on a garment pocket or elsewhere. Each of the propelling pencils and the ball point pens has a comfort grip around the lower portion of the article. Each of the propelling pencils has a cylindrical eraser inserted into the end that is opposite the writing end. Included in the item is a canister with refill leads for the propelling pencils and three replacement erasers, also for the propelling pencils. The propelling pencils, ball point pens, highlighters, refill leads and replacement erasers are all packaged together for retail sale.
Each of the propelling pencils is comprised of a plastic barrel that contains a plastic tube which holds a pencil lead. Within the tip, there is a spring and a small plastic collar. The collar is situated around plastic prongs. The collar holds the prongs together around the end of the pencil lead, thereby holding it in place.
To operate the pencil, the user pushes down on the eraser, which in turn, pushes down on the tube. The tube acts like a plunger and forces the end of the prongs through the collar, so that the prongs spread apart, thereby releasing the pencil lead. A small part of the pencil lead now extends through the tip. The spring pushes the tube back, so that the prongs return to its position within the collar, and the pencil lead is held in place by the prongs once more, with the small part at the end still extended, allowing an amount with which the user can write.
Although the retail package references the pencils as “mechanical”, this type of propelling pencil is commonly known as a clutch pencil because the lead is clutched by the 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 to be mechanical devices for classification purposes, as the lead is advanced by a manual process. See Headquarters (HQ) Ruling 961069 dated April 16, 1998.
This item is considered to be "goods put up in sets for retail sale" within the meaning of GRI 3. The replacement erasers are mere adjuncts to the propelling pencils, enabling mistaken marks made by the pencils to be eliminated. The replacement erasers and refill pencil leads are designed to be incorporated into the propelling pencils when the erasers and leads already incorporated at time of importation are rendered useless. Therefore, it is the opinion of this office that the propelling pencils, ball point pens and highlighters provide this item with the essential character, within the meaning of GRI 3(b).
The applicable subheading for Item Number 9025618 will be 9608.50.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for sets of articles from two or more of the subheadings 9608.10, 9608.20, 9608.30, or 9608.40. The rate of duty will be the rate applicable to each article in the absence of this subheading. Therefore, the ball point pens will take the rate of heading 9608.10.0000, HTSUS, which is 0.8 cents each plus 5.4 percent ad valorem. The highlighters will take the rate of heading 9608.20.0000, HTSUS, which is 4 percent ad valorem. The propelling pencils, replacement erasers and refill leads will take the rate of heading 9608.40.8000, HTSUS, which is Free.
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 http://www.usitc.gov/tata/hts/.
Articles classifiable under subheading 9608.50.0000, HTSUS, which are products of India may be entitled to duty free treatment under the Generalized System of Preferences (GSP) upon compliance with all applicable regulations. The GSP is subject to modification and periodic suspension, which may affect the status of your transaction at the time of entry for consumption or withdrawal from warehouse. To obtain current information on GSP, check our Web site at www.cbp.gov and search for the term “GSP”.
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.
Thomas J. Russo
National Commodity Specialist Division