CLA-2-96:OT:RR:NC:N4:422
Ms. Maria E. Celis
Neville Peterson LLP
Counsellors at Law
17 State Street – 19th Floor
New York, NY 10004
RE: The tariff classification of propelling pencils with lead and eraser refills from China
Dear Ms. Celis:
In your letter dated May 17, 2012, on behalf of MegaBrands, Inc., you requested a tariff classification ruling.
The submitted sample is identified as Write Dudes Mechanical Pencils. This item is comprised of four clutch pencils, 3 cylindrical eraser replacements, and a pencil lead refill pack containing 12 refill leads, packaged together for retail sale. Each pencil is comprised of a plastic barrel that contains a plastic tube which holds a 0.7mm pencil lead. At the end of the tube is a small cylindrical removable eraser that is covered by a removable metal cap. At the other end of the pencil is the pencil tip. 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 cap that covers 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. As you requested, the sample will be returned to you.
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. You have suggested that this item is correctly classified in subheading 9608.40.8000 and we agree. This item is considered to be "goods put up in sets for retail sale" within the meaning of GRI 3. The erasers are mere adjuncts to the propelling pencils, enabling mistaken marks made by the pencils to be eliminated. The additional erasers and pencil leads function as replacements, 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, commonly known as clutch pencils, provide this item with the essential character, within the meaning of GRI 3(b).
The applicable subheading for the “Write Dudes Mechanical Pencils” 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,
Thomas J. Russo
Director
National Commodity Specialist Division