CLA-2 RR:CTF:TCM 967904 KBR
Don Obert, Esq.
Follick & Bessick
33 Walt Whitman Road, Suite 310
Huntington Station, NY 11746
RE: Cordless Swivel Sweeper
Dear Mr. Obert:
This is in reference to your letter on behalf of Ontel Products Corp., dated September 1, 2005, to the Bureau of Customs and Border Protection (“CBP”), Director, National Commodity Specialist Division, New York, in which you requested a binding ruling concerning the classification of a cordless swivel sweeper under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You also provided a sample for our review. The binding ruling request was referred to this office for reply. Consideration was also given to information provided during a teleconference held with you and representatives of Ontel Products Corp. and Kevin Kennedy & Associates, on December 14, 2005.
The article involved is a cordless swivel sweeper. This is a battery operated floor sweeper. It is comprised of:
A sweeping “head” composed of a 7.2 volt electric motor to power rotating brushes in a rectangular box configuration, a dirt collection tray with removable plate, and a mesh filter;
A pole handle which breaks apart into three pieces and joins the head with a ball swivel mount;
A rechargeable Nickel Metal Hydride (“NiMH”) battery;
A battery recharger; and
A brush cleaning tool.
You claim the brushes rotate at speeds over 3,000 rpm. You submitted a Product Analyst Report from Kevin Kennedy & Associates. You believe that the cordless swivel sweeper should be classified in subheading 8509.10, HTSUSA, as a vacuum cleaner.
Is the cordless swivel sweeper a vacuum of subheading 8509.10, HTSUSA, or an “other” electromechanical domestic appliance, with self-contained electric motor, of subheading 8509.80, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRIs 2 through 6.
The HTSUSA provisions under consideration are as follows:
8509 Electromechanical domestic appliances, with self-contained electric motor; parts thereof:
8509.10.00 Vacuum cleaners, including dry and wet vacuum cleaners:
* * * * *
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8509.10.0070 Weight not exceeding 5 kg
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8509.80.00 Other appliances:
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In understanding the language of the HTSUSA, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The cordless swivel sweeper is comprised of several separate components that when assembled together become a functional sweeper. The battery and battery charger are parts required to operate the cordless swivel sweeper. Pursuant to Section XVI Note 2, the battery and battery charger will be classified with the cordless swivel sweeper.
The brush cleaning tool is an “accessory”, not necessary for the functioning of the cordless swivel sweeper. The brush cleaning tool would not be classified in the same heading as that of the cordless swivel sweeper, heading 8509 (electromechanical domestic appliances, with self-contained motor). If no single heading describes all of the components of an article, the components must either be considered as a set or composite good under GRI 3(b), or the components must be classified individually. GRI 3(b) states that when goods are prima facie classifiable under two or more headings, classification shall be effected as follows:
(b) Mixtures, composite goods consisting of different materials or made up of different components, and 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, insofar as this criterion is applicable.
EN (X) for GRI 3(b), states that "[f]or the purposes of this Rule, the term 'goods put up in sets for retail sale' shall be taken to mean goods which:
(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).
In the instant case, the cordless swivel sweeper and the brush cleaning tool are two components of different tariff headings, packaged together for the activity of sweeping floors, and marketed and packaged in one box for retail sale directly to the consumer without repackaging. Therefore, the cordless swivel sweeper and brush cleaning tool qualify as a set pursuant to GRI 3(b).
Under EN (VIII) to GRI 3(b), “the factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.”
CBP has taken the position that, in an essential character analysis for purposes of GRI 3(b), the role of the constituent materials or components in relation to the use of the goods is generally of primary importance, but the other factors listed in EN (VIII) for GRI 3(b) should also be considered, as applicable (see, e.g., HQ 961095 dated July 20, 1998; HQ 962047 dated May 17, 1999).
In the instant case, the cordless swivel sweeper is of primary importance compared to the brush cleaning tool. Therefore, we find the essential character of the set consisting of the cordless swivel sweeper and the brush cleaning tool to be determined by the sweeper.
The ENs for Heading 8509, HTSUSA, state, in pertinent part:
This heading covers a number of domestic appliances in which an electric motor is incorporated.
* * * * *
The appliances of this heading are of two groups (see Chapter Note 3):
A limited class of articles are classified here irrespective of their weight.
This group consists of the following only:
Vacuum cleaners, including those with rotating brushes or carpet beating devices. They perform two functions: the suction of dust and the filtering of the air stream. Suction is effected by means of a turbine fixed directly onto the shaft of the motor, turning at high velocity. The dust is collected in an internal or external dust bag, whereas the air sucked in and filtered is also used to cool the motor.
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If a tariff term is not adequately defined in the HTSUS or ENs, it may be construed in accordance with its common or commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). In The Random House College Dictionary, Random House, 1973, “vacuum cleaner” is defined as “an electrical apparatus for cleaning carpets, floors, furniture, etc., by suction. Also called vacuum sweeper.” See also, Webster’s New Collegiate Dictionary, G. & C. Merriam Co., 1979.
Initially we note that the cordless swivel sweeper is marketed as a “sweeper,” not a “vacuum.” Further, it does not meet the ENs description of a vacuum cleaner because it does not provide suction by having “a turbine fixed directly onto the shaft of the motor”. As you note, the ENs are not legally binding. However, CBP does give the ENs considerable weight in defining terms in the HTSUSA. See T.D. 89-80, supra. You state that the ENs do not apply to many of today’s vacuum cleaners, specifically “bagless” vacuum cleaners. Therefore, you believe the EN description for vacuum cleaners should be virtually disregarded. However, with the dictionary definitions in agreement, we do find the ENs instructive as to the issue of creating suction. The definitions of both the ENs and the dictionaries stress that a vacuum cleaner’s method of cleaning is by suction. Auxiliary features may include rotary brushes, but the defining mechanism of a vacuum cleaner is suction. The instant cordless swivel sweeper merely has rotating brushes which as a bi-product produce a minimal amount of air movement. This is different from a vacuum cleaner. The motor of the cordless swivel sweeper only powers the brushes. A vacuum cleaner has a motor which powers a mechanism specifically designed to cause suction. While a vacuum cleaner may have powered rotating brushes, the brushes are an auxiliary feature to the mechanism which separately and primarily creates the suction.
You provided a test report from Kevin Kennedy & Associates, which tested the cordless swivel sweeper for dirt collection and air movement and air filtration. The primary test run to demonstrate suction, was a “match test”. Reportedly, a match held out to the head of the cordless swivel sweeper would be extinguished by the air flow caused by the rotating brushes. We recreated the match test with the sample cordless swivel sweeper and our matches were not extinguished, but merely lightly flickered. The air flow bi-product of the rotating brushes is not the equivalent of “suction” as intended for vacuum cleaners.
CBP has previously held that sweeper devices similar to the instant device are not classified as vacuums. NY K85051 (May 17, 2004), cited the aforementioned language in the ENs regarding suction and stated that the motorized “carpet sweeper consists of a rotating brush in a housing used to collect the dirt. It does not have the features of a vacuum cleaner.” Therefore, the sweeper in NY K85051 was not classified as a vacuum, but as an other appliance, electromechanical domestic appliance with self-contained electric motor in subheading 8509.80.0095, HTSUSA. See also, NY K86962 (June 25, 2004).
Therefore, we find that the cordless swivel sweeper is classified in heading 8509, specifically subheading 8509.80.0095, HTSUSA, which provides for: “Electromechanical domestic appliances, with self-contained motor; parts thereof: Other appliances: Other.”
The cordless swivel sweeper is classified in heading 8509. It is provided for in subheading 8509.80.0095, HTSUSA, which provides for: “Electromechanical domestic appliances, with self-contained motor; parts thereof: Other appliances: Other.” The 2005 column one general rate of duty is 4.2% ad valorum.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.
Gail A. Hamill, Chief
Tariff Classification and Marking Branch