CLA-2 CO:R:C:G 085948 STB
District Director of Customs
Patrick V. McNamara Building
477 Michigan Avenue
Suite 200
Detroit, Michigan 48226-2568
RE: Decision on Application for Further Review of Protest
No. 3801-9-001812 of September 26, 1989.
Dear Sir:
Protest 3801-9-001812 was filed against your decision to
classify two models of typewriters designed for use by children,
one electric and one manual, as other toys (except models), not
having a spring mechanism, under subheading 9503.90.60 of the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), dutiable at a rate of 6.8% ad valorem.
FACTS:
The entries that are being protested were liquidated on
March 17 and 31, 1989 and April 14 and 21, 1989. Protestant
claims that the classification under subheading 9503.90.60,
HTSUSA, is not the proper classification; instead, according to
protestant, the electric typewriter should be classified under
subheading 8469.21.00, HTSUSA, the provision for other
typewriters, electric, weighing not more than 12 kg, excluding
case, and the manual typewriter should be classified under
subheading 8469.31.00, HTSUSA, the provision for other
typewriters, nonelectric, weighing not more than 12 kg, excluding
case. If the items are classified as claimed by protestant they
will be entitled to duty-free entry.
The Petite electronic model is approximately 9-1/2 inches by
12 inches and is 2-1/2 inches high. It weighs 3 pounds 6 ounces
including the batteries. This model may be operated on six "C"
batteries or may be used with an AC adapter. It has a standard 4
row "QWERTY" format keyboard, including numbers and punctuation
symbols in the standard locations. This model accepts the normal
8-1/2 inch by 11 inch typing paper. The keys type to an easy
touch and the type is very legible. According to counsel for the
importer, the machine enables the operator to "type steadily at
-2-
speeds in excess of 30 words per minute." The body of the
typewriter is gray and the keyboard is dark gray.
The manual model is named the "Petite 990" and it comes with
a plastic case and carrying handle. The typewriter measures
approximately 11-1/2 inches by 12-1/2 inches and is 5 inches in
height. It weighs 3 pounds 12 ounces without the case. The
typewriter has a standard "QWERTY" keyboard and the width of the
platen accommodates a standard 8-1/2 inch by 11 inch sheet of
typing paper. It has a shift key, a back space key, a space bar,
a full set of numbers located in the standard positions, an end
of line warning bell, and a line space lever. Although a user of
this machine must sometimes tap rather sharply on the keys to
produce legible type, the machine is usable, especially for
short documents such as letters and homework assignments. The
body of the typewriter is constructed of plastic. According to
Counsel for the importer, this plastic is "high impact" plastic.
The item is in two colors; most of the body is white, while the
key board and other small parts are maroon.
Counsel for the importer has submitted additional items and
information for our consideration. To support the position that
neither typewriter should be classified under the "toy" heading,
counsel submitted samples of 3 items that he felt, although
resembling typewriters, could be more properly classified under
heading 9503, HTSUSA. One item submitted is the "Tutor Typer" by
Tomy. This sample is much smaller than both Petite models. It
is constructed of light duty plastic in children's colors
including bright orange, bright yellow, bright red and white. It
has a three row keyboard (no numbers) and has no typing
capability. There are words and pictures permanently printed on
the carriage; it does not accept paper. Another item is the
"Play Typewriter" by Blue-Box Toys. This item is almost exactly
identical to the "Tutor Typer"; the colors are different but
they are also bright children's colors. Also submitted was the
"Mickey Mouse Jr. Typewriter" by Walt Disney. This item features
only three keys (which are very large) on the keyboard; a
"shift" key, a "type" key and a "spacer" key. It is operated by
a combination wheel and key device. Turning the wheel to the
desired letter, numeral or character and depressing the type key
imprints that letter, etc. on a piece of paper. The item is
constructed of light duty plastic and decorated with bright
colored pictures of Mickey Mouse and Donald Duck.
Counsel for the importer also submitted copies of
advertisements for the items under consideration and a copy of a
marketing research report prepared by Hooper Marketing, Inc., an
independent market research company. The report was prepared in
April of 1984 on behalf of Britains Petite. The report describes
and summarizes interviews with children and mothers in Chicago,
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Illinois, concerning the expectation and acceptance of the
children and the mothers of various typewriters designed for use
by children. As stated in the letter from counsel for importer
dated April 24, 1990, and as is apparent from reading the report,
the report notes several times that neither the children nor the
parents considered the typewriters at issue to be toys.
ISSUE:
What is the proper classification of the two models of
typewriters at issue?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
legal framework in which merchandise is to be classified under
the HTSUSA. GRI 1 requires that classification be determined
first according to the terms of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's taken in order. In the instant
case, classification can be accomplished by reference to GRI 1.
It is our determination that both models are properly classified
as typewriters under heading 8469, HTSUSA.
In arriving at this determination, we agree with and accept
many of the arguments advanced by counsel for the importer in the
Memorandum in Support of Protest. We also note some additional
arguments.
First, it is clear that these typewriters match the
description of typewriters provided in the Explanatory Notes to
heading 8469. These Explanatory Notes, however, also provide an
exclusion for "toy typewriters" that are said to be classifiable
in heading 9503.
The General Explanatory Notes to Chapter 95 state that this
chapter "covers toys of all kinds whether designed for the
amusement of children or adults." The Explanatory Notes to
Heading 9503, in pertinent part, explain that this heading
covers:
(A) (17) Educational toys (e.g. toy chemistry,
printing, sewing and knitting sets).
The Explanatory Notes to section (A) also state the following:
Certain toys (e.g., electric irons, sewing machines,
musical instruments, etc.) may be capable of a limited
"use"; but they are generally distinguishable by their size
and limited capacity from real sewing machines, etc.
-4-
It is our determination that the typewriters at issue are
not the types of "toys" envisioned by the drafters as being
excluded from Heading 8469; they are both fully functioning
typewriters. The three toys submitted for comparison by counsel
for the importer seem to better represent the type of items that
would be excluded from heading 8469. We agree with counsel for
the importer concerning the importance of the quotation marks in
that part of section (A) of the Explanatory Notes which allows
for limited "use" of certain toys. The Mickey Mouse Jr.
Typewriter, on which a child could probably consume hours typing
one paragraph, is an example of an item that has such a limited
use that its usefulness is seriously in question. In contrast,
the electronic model of the Petite can be utilized to type
lengthy, legible documents in a reasonable amount of time. While
the manual model sometimes requires rather sharp tapping to type
clearly, it is suitable for uses such as typing personal letters,
short notes, homework assignments, etc. It does not matter that
it would not satisfy the requirements of an office machine, or
that the quality may not be quite what one would expect of most
machines used by adults. These typewriters are clearly designed
for use by children. The ages of the children studied in the
market research report varied from 6-1/2 years of age to 9 years
of age.
It is also interesting to note that these typewriters are
constructed in adult type colors and not the normal bright,
multicolored look of most toys. It was noted in the market
research report that the children preferred these adult colors
because they did not view these typewriters as toys.
Of course there are other types of machines, in addition to
those such as the three comparison samples submitted by counsel
for the importer, that may possibly be classifiable as toys.
Examples of such machines are those that have no numbers and/or
punctuation marks, machines that only type in capital letters,
typewriters that are not capable in typing in capital letters,
machines that do not accept standard 8-1/2 inch by 11 inch paper,
etc. Although these limitations do not necessarily result in the
toy classification, they are factors to consider; such machines
come closer to demonstrating the "limited capability" that is
discussed in the Explanatory Notes to Heading 9503. Poor
quality is not the same thing as "limited capability".
Moreover, quality can be a very subjective test and can make
classification quite difficult.
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Finally, we refer to Western Stamping Corporation v. United
States, 61 Cust. Ct. 152, C.D. 3554 (1968). In that case, the
court ruled that an inexpensive, lightweight typewriter, designed
for use by children and known as the "Marxwriter 200" was
properly classifiable as a typewriter and stated:
The clear weight of the authorities on the subject of
toys is that a cheaply constructed article or one that is
less elaborate than a larger one of the same general kind is
not necessarily a toy.
The court also stated the following:
Hence, even if it were an uncontroverted fact that
articles of the class of Tom Thumb toy typewriters were
designed for and used exclusively by children, the most
that the court could hold would be that said articles are
chiefly used by children. This falls short of establishing
the purpose for which they are chiefly used, i.e.,
amusement.
It is our determination that the above conclusions, at
least, are relevant under the HTSUSA just as they were relevant
under the TSUS. The fact that the HTSUSA specifically allows for
educational toys in the Explanatory Notes does not affect the
factual finding of the court that typewriters are not chiefly
used for amusement. The HTSUSA defines toys as being "designed
for amusement." The assumption can be made that items that are
designed for amusement are used for amusement. Moreover, the
more "adult" colors and the standard features and keyboards on
both typewriters are evidence that these typewriters are designed
more for utilitarian purposes than for amusement.
HOLDING:
The typewriter known as the "Petite Electronic" model is
properly classifiable under subheading 8469.21.00, HTSUSA, as
other typewriters, electric, weighing not more than 12 kg,
excluding case, and is entitled to duty-free entry.
The manual typewriter known as the "Petite 990" is properly
classifiable under subheading 8469.31.00, HTSUSA, the provision
for other typewriters, nonelectric, weighing not more than 12 kg,
excluding case and is entitled to duty-free entry.
The protest should be allowed in full. A copy of this
decision should be attached to the Form 19 to be returned to the
protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division