CLA-2 RR:CR:GC 961069ptl

Port Director
U.S. Customs Service
Los Angels Airport Area
11099 S. La Cienega Blvd.
Los Angeles, CA 90045

RE: Protest 2720-97-100844, Clutch Pencils, CIE 2117/65, TC 496.11 I, HQ 953376, NY 883123, NY 806317.

Dear Port Director:

The following is our decision regarding Protest 2702-97-100844 concerning your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of articles identified as clutch pencils.

The protest covers several entries of these articles which were liquidated between May 2, 1997 and July 11, 1997. A timely protest under 19 U.S.C. 1514 was received on July 25, 1997. The protestant requested reliquidation of the entries under the provision for propelling or sliding pencils (for example, mechanical pencils): other in subheading 9608.40.80, HTSUS. Customs had classified the articles in subheading 9608.40.40, HTSUS, the provision for propelling or sliding pencils with a mechanical action for extending, or for extending and retracting, the lead.

FACTS:

The articles at issue are four different styles of clutch pencils. The manufacturer has named them the Staedtler Rave, the Side Knock, the Chubby II, and the Gizmo. The pencils are propelling pencils with a button action. Each version consists of a plastic housing containing a plastic tube. The tube holds a 0.5mm pencil lead. At the end of the tube are a plastic collar and a spring. Near the same point is also a metal stem with a circular end. This end consists of a metal collar and three prongs. When the button at the opposite end of the pencil is depressed, the prongs open and the lead is manually pushed out the end of the pencil. To retract the lead, the button is again depressed, and the user may then manually push the lead back into the pencil with a finger or any other object. Three of the four pencils have identical actions. The fourth, the Side Knock, has its button on the side, but operates in the same manner.

ISSUE:

What is the proper classification of clutch pencils?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, 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 GRIs may then be applied in order.

The headings under consideration are:

9608 Ball point pens; felt tipped and other porous- tipped pens and markers; fountain pens, stylo- graph pens and other pens; duplicating styli; propelling or sliding pencils (for example, mechanical pencils); pen-holders, pencil-holders and similar holders; parts (including caps and clips) of the foregoing articles, other than those of heading 9609:

* * *

9608.40 Propelling or sliding pencils (for example, mechanical pencils):

9608.40.4000 With a mechanical action for extending, or for extending and retracting, the lead.

9608.40.8000 Other.

The type of pencil under consideration is commonly known as a lead holder or clutch pencil because the lead is clutched by the prongs. It is not a "twist" pencil, which contains a ball-screw mechanism that extends and retracts the lead when a portion of the pencil is twisted. All parties agree that the merchandise is classified within heading 9608.40, HTSUS. The question is whether the pencils possess a mechanical action for extending, or for extending and retracting, the lead.

We cannot turn to the Harmonized Commodity Description and Coding System Explanatory Notes for clarification or guidance in this instance because distinctions at the six-digit level of the tariff are not discussed in the Explanatory Notes. However, we can turn to past Customs rulings. Customs believes that, in certain circumstances, reference may be made to earlier practice under the Tariff Schedules of the United States Annotated (TSUSA). "Decisions under the TSUS are not dispositive in interpreting the HTSUS. However, on a case-by-case basis they should be considered instructive in interpreting the HTSUS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUS. H. Conf. Rep. No. 576, p. 550." (HQ 953367, dated May 14, 1993).

Language identical to the HTSUS subheading appeared in a provision of the TSUS. That provision read:

Pencils (except ball-point pencils) designed to be refilled, whether known as mechanical pencils, clutch pencils, or by any other name:

760.10.00 With a mechanical action for extending, or for extending and retracting, the lead,

760.12.00 Other.

In CIE 2117/65, dated December 15, 1965, Customs determined that a "pencil in which the lead is extended or retracted by gravity and after retraction or extension is held in place by jaws which close as they are retracted in the pencil by a spring action activated by a plunger on the opposite end of the pencil" was classified in item 760.12, TSUS. A similar decision was reached in TC 496.11 I, dated January 20, 1967 and NY 806317 of June 1983.

In NY 883128, dated March 18, 1993, Customs distinguished between pencils which have internal twist mechanisms for propelling lead and clutch pencils in which the lead is held in place by small jaws. All these rulings indicate that Customs has consistently held, as far as pencils are concerned, that spring operated jaws which grasp lead are not considered to be mechanical devices for classification purposes.

HOLDING:

In accordance with the above discussion, the clutch pencils under protest are classified in subheading 9608.40.80, HTSUS, which provides for ball point pens; felt tipped and other porous-tipped pens and markers; fountain pens, stylograph pens and other pens; duplicating styli; propelling and sliding pencils (for example, mechanical pencils); pen-holders, pencil-holders and similar holders; parts (including caps and clips) of the foregoing articles, other than those of heading 9609: ... propelling or sliding pencils (for example, mechanical pencils): other. The column one general rate of duty for this article in 1997 was 1.4 percent per gross.

Since reclassification of the merchandise as indicated above will result in a lower rate of duty as claimed you are instructed to ALLOW the protest in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto. Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,


John Durant, Director
Commercial Rulings Division