HQ 0950884 - 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 - United States International Trade Commision Rulings

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HQ 950884

June 25, 1992

CLA-2 CO:R:C:M 950884 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 8509.80.00

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,

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)
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).

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
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

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