CLA-2 CO:R:C:G 087180 MBR

Mr. Ned H. Marshak
Sharretts, Paley, Carter & Blauvelt
69 Broad Street
New York, N.Y. 10004

RE: Hand-Sew Mini Mender; Special Purpose Sewing Machine; GRI 3(b); Set; Modification of NY 850267; Textile in Set

Dear Mr. Marshak:

This is in reply to your letter of May 14, 1990, and supplemental submission of September 18, 1990, requesting reconsideration of NY 850267, dated March 22, 1990, regarding the classification of the Hand-Sew Mini Mender, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The Hand Sew Mini Mender ("Mini Mender") is a hand held sewing device that consists of a sewing needle and a fabric transport gear (which moves the fabric from left to right during the sewing operation). The Mini Mender is packaged with a spool of thread, an extra needle, a needle threader, and a set of instructions. The Mini Mender measures 1" X 4.5" X 3". The Mini Mender is operated by placing in the hand and drawing together the top and bottom portion. The Mini Mender creates a "chain stitch."

ISSUE:

What is the classification of the Hand Sew Mini Mender, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part:

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...classification shall be determined according to the terms of the headings and any relative section or chapter notes...

NY 850267, dated March 22, 1990, held that the Mini Mender was classifiable under subheading 8205.51.75, HTSUSA, which provides for: "[h]andtools (including glass cutters) not elsewhere specified or included: [o]ther handtools (including glass cutters) and parts thereof: [o]ther."

The importer's counsel argues that the Mini Mender is a "sewing machine" and is therefore properly classifiable under subheading 8452.29.90, HTSUSA, which provides for: "[s]ewing machines, other than book-sewing machines of heading 8440: [o]ther: [o]ther: [o]ther."

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to heading 8452, page 1260, state:

The sewing machines and sewing machine heads of this heading are intended for sewing together two or more pieces of textile material, leather, etc....

The Explanatory Notes constitute the Customs Cooperation Council's official interpretation of the Harmonized system. While not legally binding on the contracting parties, the ENs provide a commentary on the scope of each HTSUSA heading and are thus useful in ascertaining the classification of merchandise under the system. Customs believes the ENs should always be consulted. See T.D. 89-80.

Legal Note 5., Section XVI, states: "For the purposes of these Notes, the expression "machine" means any machine, machinery, plant, equipment, apparatus or appliance cited in the headings of chapter 84 or 85." Clearly, the Mini Mender is a machine, cited in a heading of chapter 84, intended for sewing together two or more pieces of textile material.

The EN to heading 8452, page 1260, also states:

Except when performing certain embroidery work, these machines generally operate with two threads, one inserted by the needle and one carried underneath by a shuttle. They generally have one needle and one shuttle, but may be fitted with several needles and shuttles (e.g., to produce a double or triple seam).

Although, the Mini Mender does not operate with two threads and a shuttle, this EN does not exclude the Mini Mender. The EN only states that "these machines generally operate with two threads..."

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Furthermore, the EN contemplates non-electric sewing machines, such as the Mini Mender, when it states:

Electric sewing machines with a built-in electric motor, whether domestic or otherwise, remain classified in this heading.

Furthermore, most importantly, the EN specifically delineates special purpose sewing machines that do not use two threads and a shuttle:

In addition to the ordinary sewing machines used in the home or by tailors, dress-makers, etc., the heading also covers special machines which can be used only for certain other kinds of sewing, such as:

(6) Machines for sewing up sacks after filling (flour or cement sacks, etc.); these machines may be suspended and generally have no shuttles.

(7) Machines for sewing up tears in sacks.

This list was not intended to be exhaustive or all inclusive, and was intended only to provide examples, i.e., "such as" those named.

The Mini Mender performs a "chain stitch." Webster's Third New International Dictionary, (1986), defines a "chain stitch" as: "2. A stitch in machine sewing in which the looping of the thread forms a chain on the underside of the work." (Emphasis added).

Therefore, it is now Customs opinion that the Mini Mender is a machine which performs "machine sewing" and is, therefore, a "sewing machine" classifiable under heading 8452, HTSUSA.

The Mini Mender is imported with a spool of thread, a needle threader, and a replacement needle. Thus, classification of these articles must be addressed. GRI 3(b) provides direction for the classification of goods put up in sets for retail sale. The rule states, in pertinent part:

Goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character...

The EN for GRI 3(b), page 4, states:

(X) For the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean goods which:

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(a) consist of at least two different articles which are, prima facie, classifiable in different headings...;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

Clearly, the Mini Mender meets the EN definition of "goods put up in sets for retail sale" because the Mini Mender: (1) consists of at least two different articles; (2) which are classifiable in different headings; (3) consists of articles put up together to carry out a specific activity; and (4) the articles are put up in a manner suitable for sale directly to users without repacking. See HQ 081430, dated September 29, 1989, for similar holding regarding a household sewing machine with accessory kit and spools of thread.

In regard to the scope of the provision for sewing machines of the household type, the EN, p. 1261, state:

Subheading 8452.10 applies only to the following sewing machines and sewing machine heads, all of which are capable of at least lock-stitch operation:

(a) foot or hand powered machines;

(b) machines incorporating an electric motor...;

(c) machines for powered operation....

The subheading does not, however, include sewing machines dedicated to a specific function such as button holing or filled bag closing.

A "lock-stitch" is defined in Webster's New World Dictionary, Third College Edition (1988), p. 794, as: "the typical sewing-machine stitch formed by the interlocking of two threads." The Mini Mender is not capable of performing a "lock- stitch." The Mini Mender can only perform a "chain stitch" which dedicates it to certain specific functions such as mending and craft uses. Therefore, the Mini Mender is not classifiable under subheading 8452.10, HTSUSA, which provides for sewing machines of the household type, but remains classifiable under subheading 8452.29.90, HTSUSA.

A Federal Register notice and letter to the Commissioner of -5-

Customs published on December 29, 1988 (53 FR 52765) announced separate visa and separate statistical reporting requirements for textiles and textile products entered as sets. The letter below was published as an amendment, clarifying the previously published letter.

Chairman, Committee for the Implementation of Textile Agreements. Commissioner of Customs, Department of the Treasury, Washington, DC 20229

Dear Mr. Commissioner: This letter amends the directive of December 23, 1988 to further clarify the intent of the Committee for the Implementation of Textile Agreements on the applicability of visa requirements and quota reporting of textiles and their products entered as sets under GRI 3 of the Harmonized Tariff Schedule. Effective on August 24, 1989, the directive of December 23, 1988 is amended to read as follows: Under the terms of Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); and in accordance with the provisions of Executive Order 11651 of March 3, 1972, as amended; all applicable visa and quota requirements will apply for textiles and their products which are classified as parts of a set. This rule applies to all items which, if imported separately, would have required a visa and the reporting of quota. Effective January 1, 1989, you are directed to prohibit entry for consumption or withdrawal from warehouse for consumption into the United States [i.e., the 50 states, the District of Columbia and the Commonwealth of Puerto Rico] of any textile item for which classification is claimed as sets under General Rules of Interpretation [GRI] 3 of the HTS, where a separate textile category currently exists or comes into existence requiring separate reporting of the components forming those sets. Entry shall be permitted if all visa and quota requirements are met. The Committee for the Implementation of Textile Agreements has determined that these actions fall within the foreign affairs exception to the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Auggie D. Tantillo,
Chairman, Committee for the Implementation of Textile
Agreements.

[FR Doc. 89-19965 Filed 8-23-89; 8:45am]. See Federal Register,
Vol. 54, No. 163, August 24, 1989, p. 35223.

Therefore, even though the spool of thread is included as a
constituent part of this set for classification purposes, it
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still falls within textile category designation 200, and products
originating in Taiwan are subject to visa and quota requirements
which must still be met.

HOLDING:

The Hand Sew Mini Mender is clearly a special purpose sewing
machine dedicated to a specific function, and is classifiable
under subheading 8452.29.90, HTSUSA, which provides for:
"[s]ewing machines, other than book-sewing machines of heading
8440: [o]ther sewing machines: [o]ther: [o]ther." The rate of
duty is 2.5% ad valorem.

Even though the spool of thread is included as a
constituent part of this set for classification purposes, it
still falls within textile category designation 200, and products
originating in Taiwan are subject to visa and quota requirements
which must still be met.

EFFECT ON OTHER RULINGS:

NY 850267, dated March 22, 1990, is modified under authority
of section 177.9(d), Customs Regulations.

Sincerely,

John Durant, Director
Commercial Rulings Division