CLA-2 RR:CR:TE 960801 GGD
Ms. Judith L. Haloskey
C J International, Inc.
519 South Ellwood Avenue
Baltimore, Maryland 21224
RE: "Jumbo Pencil;" Article of Wood; Not Pencil; Not Other Toy;
Not Practical Joke Article
Dear Ms. Haloskey:
This letter is in response to your inquiry of June 19, 1997,
on behalf of your client, Raymond Geddes & Co., Inc., concerning
the classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), of an article identified as a
"Jumbo Pencil" manufactured in China. A sample was submitted
with your request.
FACTS:
The sample article has the appearance of a colorful pencil,
but one which measures approximately 21 inches in length, 1 inch
in diameter, and 3-1/4 inches in circumference. The item, which
is tubular and almost entirely composed of turned wood, has a
rubber eraser at one end and is blunt (unsharpened) at the other
end. The importer states that only 1 inch of lead is encased in
the article (at the blunt end), the result being that over 95
percent of the item contains no lead for writing. The item would
most likely be sharpened, if at all, by a large knife, planing
tool, saw, etc. It would be awkward and tiring to hold the
article in a writing position for any length of time. -2-
ISSUE:
Whether the item is classified as a pencil, a toy, a
practical joke article, or an article of wood.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRI). GRI 1 provides that
the classification of goods shall be determined according to the
terms of the headings of the tariff schedule and any relative
Section or Chapter Notes. In the event that the goods cannot be
classified solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRI may then
be applied. The Explanatory Notes (EN) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRI.
Among other goods, heading 9609, HTSUS, provides for
pencils. The EN to heading 9609 indicate that the heading
includes among other merchandise, pencils and crayons, with leads
encased in a rigid sheath. As noted in the FACTS section above,
lead is not present in over 95 percent of the item's length and
its design is impractical for actual use as a pencil for writing.
The article is not classifiable in heading 9609.
Heading 9503, HTSUS, applies to "other toys," i.e., all toys
not specifically provided for in the other headings of chapter
95. Although the term "toy" is not defined in the tariff, the EN
to chapter 95 indicate that a toy is an article designed for the
amusement of children or adults. Webster's New World Dictionary
of the American Language (1972), defines "amuse" as "1. to keep
pleasantly or enjoyably occupied or interested; entertain [we
amused ourselves with games] 2. To make laugh, smile, etc. by
being comical or humorous." Although the appearance of the
"Jumbo Pencil" attracts attention and is initially interesting,
we find that the item is not designed to sustain interest or
enjoyably occupy one's attention in a manner that suggests
amusement. The article is not principally designed to amuse and
is not classifiable as a toy.
Heading 9505, HTSUS, provides for "Festive, carnival or
other entertainment articles, including magic tricks and
practical joke articles; parts and accessories thereof." The EN
to heading 9505 indicate, in pertinent part, that the heading
covers: -3-
(B) Conjuring tricks and novelty jokes, e.g., packs of
cards, tables, screens and containers, specially designed
for the performance of conjuring tricks; novelty jokes such
as sneezing powder, surprise sweets, water-jet button-holes
and "Japanese flowers."
In Parksmith Corporation v. United States, 67 Cust. Ct. 405,
408, C.D. 4304 (1970), the court reviewed several dictionary and
court case definitions of the term "practical joke," determining
that a practical joke article is one which causes humor by
"somehow placing an individual at a disadvantage through a trick
or prank." In light of the examples suggested in the EN and the
court's determination, Customs classifies items which surprise
and place a person at a humorous disadvantage as practical joke
articles in subheading 9505.90.20, HTSUS.
In HRL 953188, issued May 18, 1993, Customs classified
several rubber figures as practical joke articles. When handled
by unsuspecting individuals, the water-filled toy animals/
creatures could squirt water from their mouths, soaking and
surprising the handler. In HRL 956261, issued May 26, 1994,
however, it was found that "Silly Spray" novelty items were
humorous, but failed to surprise an individual and place him/her
at a humorous disadvantage. Available in four varieties, the
merchandise consisted of canned, pressurized, distilled water to
be sprayed as a "Birthday Repellent" or "Weekend Extender," or to
create an "Instant Vacation" or "Personal Space." The items were
classified in heading 2851, HTSUS, which among other goods,
provides for distilled water. The "Jumbo Pencil" also lacks the
elements of surprise and the placement of an individual at a
humorous disadvantage. The item is not classifiable as a
practical joke article.
Heading 4421, HTSUS, covers "Other articles of wood." The
EN to heading 4421 indicate that the heading covers all articles
of wood manufactured by turning or by any other method other than
those specified or included in the preceding headings. The
"Jumbo Pencil" is an article of wood that is manufactured, in
large part, by turning, i.e., by being rotated against a tool
such as a lathe. Having ruled out headings 9609, 9503, and 9505,
HTSUS, we find that the article is properly classified in heading
4421, specifically in subheading 4421.90.9840, HTSUSA. -4-
HOLDING:
The article identified as a "Jumbo Pencil" is classified in
subheading 4421.90.9840, HTSUSA, the provision for "Other
articles of wood: Other: Other: Other, Other." The general
column one rate of duty is 4 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division