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HQ 951918

April 13, 1993

CLA-2 CO:R:C:F 951918 ALS


TARIFF NO.: 9609.10.0000

Area Director of Customs
New York Seaport Area
6 World Trade Center
Room 762
New York, New York 10048-0945

RE: Request for Further Review of Protest 1001-92-100065, dated January 3, 1992, and amended on January 9, 1992, Concerning Non-Sharpening Pencils

Dear Ms. Maguire:

This ruling is on a protest that was filed against your decision of October 11, 1991, in the liquidation of an entry covering non-sharpening pencils.


The article under consideration is a pencil which consists of a pvc plastic barrel approximately five inches long which is tapered at one end and capped at the other. The barrel contains a series of eleven pencil points of lead partially encased in a tapered plastic cap with ridges. The points are 3/4 inch long. The plastic encasing each piece of lead has a cavity at the end opposite the lead so that it can receive another one of the lead pencil points. They are held in place on the one hand by the barrel cap and other hand by the friction of the aforementioned plastic cap with ridges against the tapered portion of the barrel.

The pencil is operated by removing the worn point encased in plastic from the writing end of the barrel, shaking the barrel to bring the next point forward and by inserting the used point in the opening in the barrel's cap.


Is the article under consideration a propelling or sliding pencil classifiable in heading 9608, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), or a pencil with leads encased in a rigid sheath classifiable in heading 9609, HTSUSA?


Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRI's are applied taken in order.

Although counsel disagrees with the classification of the subject article in heading 9609, as liquidated, we note that there is agreement that the subject article is a pencil. Counsel states that the pencils do not consist of leads "encased in a rigid sheath" as provided for in heading 9609. He states that the pencils are similar to mechanical pencils with independent lead, barrel, and eraser components, replaceable leads and reusable barrels.

Counsel notes that mechanical pencils consist of a barrel, usually of plastic or metal, and a mechanism for holding a writing lead. He further notes that the barrel is not attached to the lead, but is designed to act as a reusable writing instrument the leads of which may be replaced when depleted. Based on these observations counsel concludes that the subject pencils are like mechanical pencils because the leads are replaceable, the barrels are reusable after the lead is depleted and the leads of the subject merchandise are not intended to be sharpened.

Counsel, referencing the Explanatory Notes (EN) to heading 9608, concludes that the subject pencil comes within the description for a propelling or sliding pencil because it features a barrel that stores spare leads. Counsel, referencing heading 9609, further states that the instant pencil is not encased in a rigid sheath and that, in the case of a non-mechanical pencil, the casing material is diminished as the pencil is sharpened.

We considered counsel's arguments about the comparable features of the instant pencil and a mechanical pencil. While there are features that are similar to both the subject pencil and a mechanical pencil, we believe that there are several features that distinguish them. The subject pencils do not have a mechanical action, e.g. screwing, spring or sliding mechanism, for extending and retracting the lead by propelling or sliding the lead out of its housing so that it can be functional.

We also considered counsel's statement that these pencils are distinguishable from regular pencils in that the lead (nibs) are not encased in a rigid sheath, that the leads are replaceable and that the barrels are reusable. In evaluating these points we consulted the Second College Edition, The American Heritage Dictionary. In doing so we noted that the term "nib" refers only to the point of a pen and not a pencil. We next considered whether the barrel of the instant product is a sheath so that the lead contained therein might be considered encased in a rigid sheath. In referring to the dictionary, id., we noted that a sheath is defined as any of various coverings resembling or used like a sheath, e.g. a case for a blade. We believe that the barrel in this case acts as both a decorative holder for the lead (a sheath) and provides the rigidity which permit the lead to perform its writing function.

Based on the above we have concluded that the subject pencil is not a propelling or sliding pencil provided for in heading 9608 but that it is a pencil with leads encased in a rigid sheath provided for in heading 9609.


Non-sharpening pencils consisting of a rigid barrel that contains eleven small pencils, encased in tapered plastic caps, which fit inside one another, are classifiable in subheading 9609.10.0000, HTSUSA. They are subject to a general rate of duty of 14? per gross plus 4.3 percent ad valorem.

Since the classification indicated above is the same as the classification under which the entry was liquidated, you are instructed to deny the protest in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of notice of action on the protest.


John Durant, Director
Commercial Rulings Division

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