The tariff classification of propelling pencils with a pencil lead and eraser refill pack from China

N027960 June 5, 2008 CLA-2-96:OT:RR:E:NC:N2:222 CATEGORY: Classification TARIFF NO.: 9608.40.8000 Mr. Ryan N Rolla CRI2000, L.P. 2245 San Diego Ave, #223 San Diego, CA 92110 RE: The tariff classification of propelling pencils with a pencil lead and eraser refill pack from China Dear Mr. Rolla: In your letter dated May 8, 2008 you requested a tariff classification ruling. The submitted illustration depicts an item that is identified as a Tek Writer Plus 72ct Mechanical Pencils Set. This item is comprised of 72 propelling pencils. Each pencil has an eraser made of thermal plastic rubber (TPR) attached to one end. This item also includes 24 additional replacement erasers that are of the same size and composition as the erasers that are attached to the propelling pencils. In addition, this item includes 240 refill 0.7mm black pencil leads that are packaged in 2 dispensers, 120 leads per dispenser. The 72 propelling pencils, 24 replacement erasers and the 2 lead dispensers that house a total of 240 refill pencil leads are all packaged together for resale sale in a box made of polyvinyl chloride (PVC) plastic material. The barrel of each pencil is made of acrylonitrile-styrene (AS) plastic material. Located within the barrel is a tube that holds a 0.7mm pencil lead. At the end of the pencil opposite the end to which the eraser is attached, 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 eraser tip, which is connected to a plastic clip. The clip, 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. 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 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 Tek Writer Plus 72ct Mechanical Pencils Set 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