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