CLA-2 CO:R:C:M 950884 LTO
District Director
U.S. Customs Service
US Customhouse
1 East Bay Street
Savannah, GA 31401
RE: Protest No. 1704-91-100213; Electric Toothbrushes
[Interplak]; 9603; EN 85.09; EN 96.03; Kaysons Import Corp. v.
U.S.; Thalson v. U.S.; E.R. Squibb & Sons, Inc. v. U.S.; Note 3
to Chapter 85; 750.40, TSUS
Dear Sir:
This is our response regarding Protest No. 1704-91-100213,
dated August 8, 1991, which concerns the tariff classification of
electric toothbrushes under the Harmonized Tariff Schedule of the
United States (HTSUS).
FACTS:
The article which is the subject of this protest is a
battery-operated, rechargeable electric toothbrush marketed under
the registered trademark, "Interplak." The Interplak consists of
two interchangeable plastic brush heads, a detachable plastic
handle containing a battery-operated motor and two rechargeable
batteries, and a stand incorporating a battery recharger.
The toothbrushes measure approximately 10.5 inches in
length. The head of each brush contains ten separate tufts of
bristles. The internal batteries are recharged by placing the
brush in the stand which has a cord for connection to an
electrical outlet. The Interplak is packaged with a tube of
toothpaste for use with the brush.
The Interplak was entered under subheading 9603.21.00,
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HTSUS, which describes toothbrushes, including such brushes
constituting parts of appliances. It was liquidated under
subheading 8509.80.00, HTSUS, which describes other
electromechanical domestic appliances, with self-contained
electric motors.
ISSUE:
Whether the electric toothbrushes are classifiable as
electromechanical domestic appliances under Heading 8509, HTSUS,
or as brushes under Heading 9603, HTSUS.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states in pertinent part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes . . . ."
The protestant contends that the Interplak is classifiable
according to GRI 1 as a "brush" under Heading 9603, HTSUS. He
argues that the article in question falls within the common
meaning of the term "brush," and that Customs should be guided by
its classification of electric toothbrushes as "brushes" under
the Tariff Act of 1930 and under the Tariff Schedules of the
United States (TSUS). A brief history on the classification of
electric toothbrushes is helpful.
Under the Tariff Act of 1930, electric toothbrushes were
classified under paragraph 1506, which provided for "[t]ooth
brushes, whether or not the handles or backs thereof are composed
wholly or in chief value of any product provided in paragraph 31,
Tariff Act of 1930." See Kaysons Import Corp. v. United States,
C.D. 2622, pg. 146 (1966). In Kaysons, the U.S. Customs Court
held that electric toothbrushes were covered by paragraph 1506
because the articles were "known in common speech and to commerce
as a toothbrush." Id. at 152.
Under the TSUS, electric toothbrushes were classified as
"other electro-mechanical appliances . . . with self-contained
motors . . . ." See Thalson v. United States, C.D. 4011, pg.
418. At this time, toothbrushes were classifiable under Item
750.40, TSUS. However, headnote 1(i) to Schedule 7, Part 8,
Subpart A [Combs, Hair Ornaments, Brooms and Brushes, Paint
Rollers], stated that "[t]his subpart does not include . . .
mechanical combs, brooms, or brushes, or combs, brooms, or
brushes which are parts of articles other than toilet articles."
In Thalson, the U.S. Customs Court concluded that headnote 1(i)
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excluded electric toothbrushes from classification as "tooth
brushes" under item 750.40, TSUS. Id. at 422.
Headnote 1(i) was later amended as follows:
This subpart does not include . . . mechanical combs,
brooms, or brushes (other than combs or brushes which
are toilet articles), or combs, brooms, or brushes
which are parts of articles (other than toilet
articles) [emphasis added] . . .
In the report of the Senate Committee on Finance to accompany the
Tariff Schedules Technical Amendments Act, S. Rep. No. 530, 89th
Cong., 1st Sess. at 33 (1965), this amendment was described as
follows:
Section 79. Electric toothbrushes.--
This section insures that electric toothbrushes and
other mechanical combs and brushes which are toilet
articles will be classified as toilet articles.
See E.R. Squibb & Sons, Inc. v. United States, 576 F.2d 921, 924-
925 (1978). In Squibb, the U.S. Court of Customs and Patent
Appeals determined that the amendment evinced a clear
congressional intent to classify electric toothbrushes under item
750.40, TSUS. Id. at 925.
The protestant argues that the principles found in the
Squibb case should be used to guide the interpretation of the
classification of electric toothbrushes under the HTSUS. The
role of administrative and judicial determinations under prior
tariff law as they relate to classification under the HTSUS has
been stated as follows:
[D]ecisions by the Customs Service and the courts
interpreting nomenclature under the TSUS are not
to be deemed dispositive in interpreting the HTS.
Nevertheless, on a case-by-case basis prior
decisions should be considered instructive in
interpreting the HTS, particularly where the
nomenclature previously interpreted in those
decisions remains unchanged and no dissimilar
interpretation is required by the text of the
HTS.
H.R. Rep. No. 576, 100th Cong., 2nd Sess. at 549-550
1988).
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In this instance, however, the provisions involved have changed.
Heading 9603, HTSUS, provides for "[b]rooms, brushes
(including brushes constituting parts of machines, appliances or
vehicles) . . . [emphasis added]." The language emphasized above
was not present in any of the provisions preceding Heading 9603,
HTSUS. While Heading 9603, HTSUS, includes brushes which are
parts of machines, there is no indication that it was intended to
cover appliances or machines which incorporate brushes such as
the instant merchandise.
The Harmonized Commodity Description and Coding System
Explanatory Note (EN) for Heading 9603, HTSUS, pg. 1601, states
that "the brooms and brushes of this group consist either of
small tufts or knots of flexible or springy fibres or filaments
mounted in a broom or brush stock or back, or, as in the case of
paint brushes, of a bunch of hairs or fibres strongly secured to
the end of a short stock or handle with or without the aid of a
metal ferrule or other retaining device." EN 96.03, pg. 1601,
further states that the materials used for mountings include
wood, plastics, bone, horn, ivory, tortoise-shell, ebonite,
steel, aluminum, brass, leather, paperboard, felt or woven
fabrics and quills of feathers, which are used as mountings for
certain paint brushes.
EN 96.03, pg. 1602, provides that Heading 9603, HTSUS,
includes "[b]rushes constituting machinery parts, for example,
for road-sweepers; for spinning or weaving machines; for
grinding, polishing or other machine tools; for milling or paper-
making . . . [emphasis added]." This note indicates that the
heading covers a brush which is a part of a machine. Thus, if
the brush heads were imported separately, the fact that they are
a part of a machine would not take them beyond the scope of
Heading 9603, HTSUS, and the brush heads would be so classified.
However, the note does not indicate that the complete machine,
including the brush, would be similarly classified. A complete
spinning or weaving machine would be classified under the
provision for the machine itself. The Interplak is not covered
by Heading 9603, HTSUS, as described by the terms of the heading
and the explanatory notes shown above. Rather, the article in
question is a machine that incorporates an article described by
this heading, namely, the two interchangeable plastic brush
heads.
Heading 8509, HTSUS, provides for "[e]lectromechanical
domestic appliances, with self-contained motor." EN 85.09, pg.
1346, states that Heading 8509, HTSUS, covers a non-limited class
of articles provided that their weight is 20 kg or less, and that
this group includes, inter alia, "[e]lectric tooth brushes." See
Note 3 to Chapter 85. The Interplak is a domestic appliance
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incorporating an electric motor, and as indicated by EN 85.09, is
classifiable under Heading 8509, HTSUS. Specifically, the
Interplak is classifiable under subheading 8509.80.00, HTSUS,
which describes other electromechanical domestic appliances with
self-contained electric motors.
HOLDING:
The article in question is classifiable under subheading
8509.80.00, HTSUS, which provides for "[e]lectromechanical
domestic appliances, with self-contained electric motor . . .
[o]ther appliances." The corresponding rate of duty for article
of this subheading is 4.2% ad valorem.
Accordingly, the protest should be denied in full. A copy
of this decision should be attached to the Customs Form 19 and
provided to the protestant as part of the notice of action on the
protest.
Sincerely,
John Durant, Director
Commercial Rulings Division