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HQ 085948

September 25, 1990

CLA-2 CO:R:C:G 085948 STB


TARIFF NO.: 8469.21.00, 8469.31.00

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.


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
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,

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.


What is the proper classification of the two models of typewriters at issue?


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.

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.

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.


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.


John Durant, Director

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