HQ 961069

April 16, 1998

CLA-2 RR:CR:GC 961069ptl

CATEGORY: Classification

TARIFF NO.: 9608.40.80

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