HQ 953215
JULY 14 1993
CLA-2:CO:R:C:M 953215 JAS
District Director of Customs
610 Canal Street
Chicago, Illinois 60607
RE: PRD 3901-92-101275; Childrens' Sewing Machine; Toy,
Amusement, Utility, Usefulness, Principal Use;
Sewing Machine of the Household Type, Subheading
8452.10.00, Section XVI, Note 1(p)
Dear Sir:
This is our decision on Application for Further Review of
Protest No. 3901-92-101275, dated October 1, 1992, filed by
counsel on behalf of Britains Petite, Inc., against your action
in classifying certain childrens' sewing machines from China.
The entries under protest were liquidated on July 6, 1992, and
this protest timely filed on October 1, 1992.
FACTS:
The merchandise in issue is the Singer lockstitch sewing
machine model # 060150. Counsel has abandoned its claim on the
chainstitch model # 060450. The model 060150 is advertised for
use by children ages 7 and up. It runs on 3 "D" batteries, has
an adapter, and is said to perform a strong lockstitch. The
machine has the following features: fast/slow stitch length
adjustment, working light, tension dial, storage compartment,
foot control, store-away bobbin winder, enclosed thread spool
holder, pull-out carrying handle, two-speed sewing, two stitch
lengths, free arm sewing platform with accessory drawer, store-
away bobbin winder, on/off switch, and foot pedal control.
The merchandise was entered under the appropriate provision
for sewing machines of the household type. The concerned import
specialist determined that these are limited use sewing machines
and are of the type regarded as toys for tariff purposes. The
entries were liquidated under the appropriate provision for other - 2 -
toys not having a spring mechanism. in subheading 9503.90.60,
HTSUS.
The provisions under consideration are as follows:
8452.10.00 Sewing machines of the household type...
Valued not over $20 each.......3.7 percent
* * * *
9503.90.60 Other toys (except models), not having a
spring mechanism...............6.8 percent
Counsel observes that neither the legal notes in the HTSUS
nor the Explanatory Notes define the term toy. He notes,
however, that under the HTSUS' predecessor tariff code, the
Tariff Schedules of the United States (TSUS), the term was
defined as any article chiefly used for the amusement of children
or adults. Schedule 7, Part 5, Subpart E, Headnote 2, TSUS. He
notes further that this language closely parallels relevant HTS
Explanatory Notes which state that chapter 95 covers toys of all
kinds whether designed for the amusement of children or adults.
He cites several cases decided under the HTSUS which discuss the
issue of toys which are educational versus educational articles
with toy features.
Counsel concludes that while this machine may be of some
amusement to children, it is not designed for the amusement of
children or adults. It is a fully functioning machine with
considerable educational value, used to introduce a child to the
skills of sewing. A demonstration in our offices confirmed that
the machine can sew together two or more textile, denim and felt
pieces in a permanent lockstitch. Counsel notes that sewing
machines of the household type must be capable at least of
performing a lockstitch.
ISSUE:
Whether the children's lockstitch sewing machine in issue is
a toy for tariff purposes; whether it is principally used for
amusement.
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). GRI 1 states in part
that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6. - 3 -
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the Customs Cooperation
Council's official interpretation of the Harmonized System.
While not legally binding on the contracting parties, and
therefore not dispositive, the ENs provide a commentary on the
scope of each heading of the Harmonized System and are thus
useful in ascertaining the classification of merchandise under
the System. Customs believes the notes should always be
consulted. See T.D. 89-80.
Initially, articles of chapter 95 are precluded from
classification in chapter 84. Section XVI, Note 1(p), HTSUS.
Thus, if these sewing machines qualify as toys of heading 9503,
they cannot be classified as sewing machines of heading 8452.
Relevant ENs at p. 1585 indicate that chapter 95 covers toys
of all kinds whether designed for the amusement of children or
adults. The provisions of heading 9503 are governed by use.
Therefore, goods of heading 9503 must belong to a class or kind
of goods that are principally used for amusement. Additional
U.S. Rule 1(a), HTSUS. Principal use is that use which exceeds
each other single use of the goods.
We agree with counsel that there are no legal notes defining
the term toy. However, ENs at p. 1588 provide some guidance when
they state that toys of heading 9503 may have some instructional
value (i.e. chemistry sets) and that certain toys such as
electric irons, sewing machines, musical instruments, etc., may
be capable of a limited use; they are generally distinguishable
from real [machines] by their size and limited capacity (Emphasis
added).
We agree with counsel that, in most cases reduced size does
not necessarily control classification. In this case, however,
the ENs make size a relevant consideration. We must therefore
assess the capacities of sewing machines of heading 8452 and
those of the machines in issue here. To make the comparison
meaningful, our discussion of heading 8452 machines will be
limited to those of the household type.
Household type sewing machines have forward and reverse
speeds and except when doing embroidery work generally operate
with two threads, one inserted by the needle and one carried
underneath by a shuttle and bobbin assembly. The instant machine
utilizes a shuttle but no bobbin, and has a fast-slow forward
speed but no reverse speed. Household machines are capable of at
least lockstitch operation and, in addition to ordinary sewing
can be used for seaming, overedge seaming, rolled hemming, pin
tucking, and braiding by chaining off as well as decorative work.
The instant machine performs a straight lockstitch only and does
no decorative work. The stitch/per/minute capability of the
instant machine is not reported, but it is doubtful it approaches - 4 -
the 1,500 stitches per minute capacity typical of home sewing
machines. Encyclopedia Americana, vol. 24, p. 634 (1980). In
addition, household-type sewing machines normally weigh at least
15 lbs. and retail from $150 to $300. The instant machine weighs
3 lbs. and retails from $29.99 to $60.
While not dispositive, we consider the following
observations to be noteworthy: instructions accompanying the
sample refer to it as a "toy" and state it has no serviceable
parts; the packing list identifies the machine as "plastic
toy[s]"; the instant machine is depicted in submitted sales
literature in the "toy" section; and finally, the machine has a
red-white-blue color scheme typical of the bright, multicolored
look of most toys (HQ 085948, dated September 25, 1990, at p. 4).
HOLDING:
Based on size and operating capacity, the sewing machine
model # 060150 is a limited use toy. Under the authority of GRI
1, it is provided for in heading 9503. Because in almost all
cases sewing machines of this type are motor-operated, it is
classifiable in subheading 9503.80.20, HTSUS, under the provision
for toys incorporating an electric motor.
Since the rate of duty under this classification is the same
as the liquidated rate, the protest should be denied. A copy of
this decision should be attached to the Customs Form 19, and
mailed to the protestant, through counsel, as part of the notice
of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division