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HQ 960801




November 21, 1997

CLA-2 RR:CR:TE 960801 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 4421.90.9840

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

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