CLA-2-96:OT:RR:NC:N4:422
Mr. Daniel Seymour
BISS Product Development
200 Overhill Drive
Suite C
Mooresville, NC 28117
RE: The tariff classification of a propelling pencil with two pencil lead refills from China
Dear Mr. Seymour:
In your letter received on May 21, 2009, you requested a tariff classification ruling.
The submitted sample is identified as the “Striker Construction Pencil”, and is further described as a mechanical carpenter’s pencil. The pencil, which contains a pencil lead, is packaged together for retail sale with a separate tube that contains two pencil lead refills. The cross section of each lead is 2.5mm x 5.5mm. Each lead also has a series of consecutive ridges.
To advance the lead within the pencil, the user pushes down on the molded plastic clip on the top of the pencil, which acts like a plunger by forcing the edge of a molded plastic lead holder within the pencil, further through the other end of the pencil. When the end of the internal holder extends further through the end of the pencil, the two bottom sections or prongs of the holder spread apart, releasing the grip on the pencil lead, thereby allowing it to advance through the end of the pencil by means of gravity.
When the user removes pressure from the top clip of the pencil, the holder retracts into the other end of the pencil, thereby bringing the prongs back together so that they hold the pencil lead in place once again. Each time the pencil lead is advanced, it stops at the next ridge on the lead. In this way, the pencil lead is advanced a little at a time. To retract the pencil lead, the user separates the prongs by pushing down on the molded clip again, while pressing the exposed section of the pencil lead at the other end of the pencil against a flat surface such as a desk top, thereby manually forcing the pencil lead further back into the pencil.
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 pencil lead refill pack is merely an adjunct to the propelling pencil. The additional pencil leads function as replacements, to be incorporated into the propelling pencils when the lead, already incorporated at time of importation is rendered useless. Therefore, it is the opinion of this office that the propelling pencil, commonly known as a clutch pencil, provide this item with the essential character, within the meaning of GRI 3(b). The applicable subheading for the “Striker Construction Pencil” will be 9608.40.8000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for propelling or sliding pencils (for example, mechanical pencils): other. The rate of duty will be 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/.
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.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division