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HQ 088354


April 5, 1991

CLA-2 CO:R:C:M 088354 MBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9608.40.40

District Director
U.S. Customs Service
Suite 625
7911 Forsythe Blvd
St. Louis, Missouri 63105

RE: Protest No. 4503-0-000016, dated 6/22/90; Mechanical Pencil; Mechanical Action; 9608

Dear Sir:

This is our response regarding Further Review of Protest No. 4503-0-000016, dated June 22, 1990, which pertains to the classification of a "SenseMatic" automatic pencil, imported from Taiwan by the Dixon Ticonderoga Company, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The "SenseMatic" pencil has a plastic body intended to simulate a wooden pencil. This automatic pencil operates by placing lead in the interior guide channel, which houses a metal spring and two metal ball bearings, which automatically advance the lead as the pencil is used.

ISSUE:

Whether the article in question is classifiable within subheading 9608.40.40, HTSUSA, which provides for "[p]ropelling or sliding pencils (for example, mechanical pencils): [w]ith a mechanical action for extending, or for extending and retracting, the lead"; or within subheading 9608.40.80, HTSUSA, which provides for "[p]ropelling or sliding pencils (for example, mechanical pencils): [o]ther," as claimed.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides
that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes.

You argue that the article in question is "a substantially different item than the mechanical pencils usually classified under HTUS 9608.40.40." Further, you argue: "Inasmuch as the lead is self-propelled to the writing tip, without the presence of any mechanical action, classification is appropriate under HTUS 9608.40.80."

In support of your argument, you cite the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) for heading 8210, HTSUSA, page 1112, which state:

This heading covers non-electric mechanical appliances, generally hand-operated, not exceeding 10 kg in weight, used in the preparation, serving or conditioning of food or drink.

For the purposes of this heading an appliance is regarded as mechanical if it has such mechanisms as.... (Emphasis added).

The EN to heading 8210, HTSUSA, is clearly limited to heading 8210, HTSUSA, by the language: "For the purposes of this heading...." Thus, it has no relevance in determining the classification of the merchandise under consideration.

Whereas, the ENs to heading 9608, HTSUSA, page 1607, state:

This heading covers:

(5) Propelling pencils or sliding pencils, single or multilead type; including the spare leads normally contained therein.

You agree that the instant merchandise is classifiable under heading 9608, HTSUSA. However, you argue that the "SenseMatic" automatic pencil does not utilize "mechanical action for extending...the lead," as required by subheading 9608.40.40, HTSUSA.

The "SenseMatic" automatic pencil advances the lead by the mechanical action of pressing the lead against the paper, which depresses the plastic tip, which in turn utilizes a spring and ball bearings to advance the lead and hold it in place. In fact, the action of depressing the lead against the paper acts in the same manner as do common mechanical action pencils whereby the user advances the lead by depressing a button, only here, the tip is in fact the button that is depressed.

Therefore, it is Customs position that the "SenseMatic" automatic pencil does utilize a mechanical action for extending the lead, and is properly classifiable under subheading 9608.40.40, HTSUSA, which provides for: "[b]all point pens; propelling or sliding pencils (for example, mechanical pencils): [p]ropelling or sliding pencils (for example, mechanical pencils): [w]ith a mechanical action for extending, or for extending and retracting, the lead."

HOLDING:

The "SenseMatic" automatic pencil is properly classifiable under subheading 9608.40.40, HTSUSA, which provides for: "[b]all point pens; propelling or sliding pencils (for example, mechanical pencils): [p]ropelling or sliding pencils (for example, mechanical pencils): [w]ith a mechanical action for extending, or for extending and retracting, the lead."

The protest is denied in full. A copy of this decision should be attached to the Form 19 Notice of Action.

Sincerely,

John Durant, Director

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