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HQ 966794





September 7, 2004

CLA-2 RR:CR:GC 966794 DBS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8509.80.0045; 9603.21.0000

Port Director
U.S. Customs and Border Protection
4341 International Parkway, Suite 600
Atlanta, GA 30354

RE: Protest #1704-03-100117; Spinbrush toothbrushes

Dear Port Director:

This is our decision on Protest 1704-03-100117, filed by counsel on behalf of the Spinbrush Company, protesting the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Spinbrush toothbrushes and replacement heads. The entries were liquidated on March 7, 2003, and the protest was timely filed on April 8, 2003. Spinbrush has filed multiple protests, several of which are also with the Port of Charlotte, North Carolina, that involve substantially similar goods for entries dating back to October 8, 2001. In accordance with the Protest/Petition Processing Handbook (CIS HB 3500-08, June 2002, pp. 16-17), this protest has been designated the “lead” protest.

We have taken under consideration classification arguments presented in submissions to this office and/or the ports of entry dated April 7, June 2, October 21, October 27, and December 11, 2003, as well as the teleconference conducted on July 22, 2004.

In addition, in the October 27, 2003 submission, reference was made, but no supporting documentation was provided, to support a claim for "treatment previously accorded to substantially identical transactions" pursuant to 19 U.S.C. §1625(c)(2) and 19 C.F.R. §177.12(e)(3). CBP confirmed with counsel for the Protestant by electronic mail of June 21, 2004 that Protestant was in fact claiming treatment previously accorded to substantially identical transactions ("treatment"). On June 22, 2004, counsel was asked to perfect its claim by provided the supporting documentation required in the CBP regulations. Documentation was provided to this office on July 14, 2004, which was insufficient. During the teleconference, counsel was provided a final opportunity to provide documentation of treatment. The final submission was received on August 5, 2004. Our decision on that claim is also contained herein.

FACTS:

The merchandise at issue is Spinbrush toothbrushes and replacement heads. The Spinbrush toothbrushes are described by counsel as "patented hybrid toothbrushes." They consist of an elongated body, a head, a handle and an angled shaft between the head and handle. The toothbrush head has two sections of bristles adjacent to one another: 22 stationary soft bristles and 23 recessed stiff bristles that rotate by means of a battery-operated motor. It is imported with two AA alkaline disposable batteries in a blister pack for retail sale. The models of Spinbrush toothbrushes at issue are the Kid's Spinbrush, which has a non-replaceable head, and the Youth/Adult Spinbrush, the earlier model of which had a non-replaceable head, and the later model of which has a removable head for which replacements are available.

The Spinbrush line of toothbrushes, including the model with replacement heads, are designed and marketed to be completely disposable. It is intended for limited use. Counsel for the protestant contends that the Spinbrush competes in the dental market as both a manual and electric toothbrush, as it has both manual and electric features which are intended to perform different cleaning actions. It is priced competitively with manual toothbrushes, and is claimed to be the only product currently on the market with dual bristles and dual uses. As such, counsel for protestant claims the toothbrushes are composite goods, classified in heading 9603, HTSUS, the provision for toothbrushes, by operation of General Rule of Interpretation 3(c), infra.

The entries at issue in the lead protest were entered in January 2002 and June 2003. Documentation submitted on August 4, 2004 showed that protested entries, which have been suspended at the port pending our decision here, date back to October 8, 2001. In December, 2003, counsel for Spinbrush submitted a prior disclosure that Spinbrush toothbrushes entered on or after August 7, 2002, should have been classified in subheading 8509.80.00, HTSUS. Counsel stated that the classification is in accordance with CBP's classification determination in HQ 965440, dated August 7, 2002, of the "Swiffer Wet Jet" in subheading 8509.80.00, HTSUS, which counsel believes to be the first relevant interpretation of heading 8509, HTSUS, by CBP.

The entries at issue were liquidated or voluntarily reliquidated, pursuant to 19 U.S.C. §1501, under heading 8509, HTSUS, which provides for electromechanical domestic appliances with self-contained electric motor. The replacement heads were classified in subheading 9603.21.00, HTSUS, which is also the provision claimed by the Protestant.

According to the August 4, 2004, submission which includes a spreadsheet of entries made from August 1999 through October 2002 and their corresponding liquidations, Spinbrush (and its predecessor company) entered the toothbrushes under heading 9603, HTSUS. This followed an alleged oral agreement by an import specialist from the Port of Cleveland in August 1999 that the toothbrushes were classified there. This verbal confirmation is evidenced by a notation in a memorandum, internal to Spinbrush, providing the name and date of the conversation with an import specialist whose team handles this type of merchandise. Counsel confirmed that all of the entries from August 1999 were liquidated on bypass status until CBP voluntarily reliquidated the entries after receiving the prior disclosure.

ISSUES:

Whether the Spinbrush toothbrushes are classified as electromechanical domestic appliances having a self-contained motor of heading 8509, HTSUS, or as toothbrushes of heading 9603, HTSUS.

Whether Spinbrush has a substantiated claim under 19 CFR §177.12(c) for treatment previously accorded to substantially identical transactions, notwithstanding the classification determination.

LAW AND ANALYSIS:

I. Classification of Spinbrush toothbrushes

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

8509 Electromechanical domestic appliances, with self-contained electric motor; parts thereof:

8509.80.00 Other appliances.

9603 Brooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees):

Toothbrushes, shaving brushes, hair brushes, nail brushes, eyelash brushes and other toilet brushes for use on the person, including such brushes constituting parts of appliances:

9603.21.00 Toothbrushes, including dental-plate brushes.

Counsel for Protestant contends that the Spinbrush toothbrushes are composite goods comprised in part of a manual toothbrush and in part an electrical toothbrush, and thus classified according to GRI 3, which provides for goods that are prima facie classifiable under two or more headings, including composite goods, which are covered by two or more headings in part only, and goods put up in sets for retail sale. Counsel supports this contention with the fact that the Spinbrush is disposable, priced at a fraction of the cost of many electric toothbrushes and patented as a hybrid toothbrush.

Note 3 to Chapter 85, HTSUS, provides, in relevant part, that heading 8509, HTSUS, covers only the following electro-mechanical machines of the kind commonly used for domestic purposes:

(a) Vacuum cleaners, including dry and wet vacuum cleaners, floor polishers, food grinders, processors and mixers, and fruit or vegetable juice extractors, of any weight;

(b) Other machines provided the weight of such machines does not exceed 20 kg, exclusive of extra interchangeable parts or detachable auxiliary devices.

The ENs to heading 8509 state:

This heading covers a number of domestic appliances in which an electric motor is incorporated. The term “ domestic appliances ” in this heading means appliances normally used in the household. These appliances are identifiable, according to type, by one or more characteristic features such as overall dimensions, design, capacity, volume. The yardstick for judging these characteristics is that the appliances in question must not operate at a level in excess of household requirements.

The ENs describe the two groups of appliances covered by the heading consistent with the (a) and (b) of the chapter note. The first group is a class of articles limited to those enumerated in the note. EN 85.09 (A). The second group is a non-limited class of articles whose weight does not exceed 20 kg. EN 85.09 (B). Included in the exemplars are electric toothbrushes. EN 85.09 (B) (7).

The Spinbrush toothbrushes are domestic appliances weighing less than 20 kg and incorporating an electric motor. They meet the terms of the heading text of heading 8509, HTSUS, and are fully and specifically described therein. Therefore, it is prima facie classifiable in heading 8509, HTSUS. This is consistent with the plain reading of the provision. See HQ 087396, dated December 4, 1990 and HQ 965440, supra. See generally HQ 955233, dated April 14, 1994 (referring to the classification in HQ 087396).

Heading 9603 provides for, among other articles, brooms, brushes, including brushes constituting parts of machines, appliances or vehicles, and hand-operated mechanical floor sweepers, not motorized. The ENs describe a wide variety of brushes covered by the heading. However, the heading is limited to those which are not power-driven. The language of the heading limits brushes that are parts of appliances to those which are imported separately. Bausch & Lomb v. United States, 148 F.3d 1363, 1367 (Fed. Cir. 1998) (interpreting the scope of heading 9603, HTSUS, with respect to brushes). See also, Section XVI, Note 1(o) excluding brushes of a kind used as parts of machines (heading 96.03).

While the Spinbrushes have a section of bristles which remain stationary, the oscillating and stationary bristles are designed close together to be used concurrently as one complete toothbrush head. The two sections of bristles cannot be used separately. To use the toothbrush without turning the motor on would defeat the purposes of having oscillating bristles and a motor. It is incongruous to classify a domestic good with a motor in a provision that provides for such a good without a motor. To suggest that the stationary bristles make the Spinbrush classifiable in part in heading 9603, HTSUS, would be the same as suggested a more sophisticated or expensive electric toothbrush could be an article of heading 9603 so long as the user did not employ the motor. In sum, the Spinbrush toothbrushes exceed the scope of heading 9603, HTSUS, because they have a motor. Thus, they are not prima facie classifiable in heading 9603 in part or in whole.

Accordingly, the Spinbrush toothbrushes would be separately classified pursuant to GRI 1 in heading 8509, HTSUS. However, as they are imported with AA batteries, classifiable in heading 8506, HTSUS, in a blister pack for retail sale, they comprise a set for retail sale. See EN X to GRI 3(b). Goods put up in sets for retail sale fall to be classified in the heading that provides for the component which imparts the essential character of the set. In this case, the essential character is imparted by the toothbrush. Therefore, the Spinbrush toothbrush set is classified in heading 8509, HTSUS.

It is also for the reasons outlined above that the replacement heads are classified in subheading 9603.21.00, HTSUS, as toothbrushes constituting parts of appliances. See Bausch & Lomb, 148 F.3d at 1367 (interpreting the scope of heading 9603, HTSUS, with respect to brushes that are parts of appliances); Section XVI, Note 1(o), HTSUS; and EN 85.09 (B) (16) (III).

II. Treatment previously accorded to substantially identical transactions

Protestant has also claimed that if the instant protest is denied, that this protest review decision constitutes a revocation of treatment previously accorded to substantially identical transactions pursuant to 19 U.S.C. §1625(c)(2) and 19 C.F.R. §177.12(c) [hereinafter "treatment"].

19 U.S.C. §1625(c)(2) requires that CBP publish for notice and comment any interpretive ruling or decision that modifies or revokes treatment previously accorded to substantially identical transactions. To determine whether treatment was previously accorded, CBP set forth in its regulations, 19 C.F.R. 177.12(c)(i), that there must be evidence to establish the following:

(A) there was an actual determination by a Customs officer regarding the facts and issues involved in the claimed treatment;

(B) The Customs officer making the actual determination was responsible for the subject matter [involved]; and

(C) over a 2-year period immediately preceding the claim of treatment, Customs consistently applied that determination on a national basis as reflected in liquidations of entries or reconciliations or other Customs actions with respect to all or substantially all of that person's Customs transaction involving materially identical facts.

19 CFR §177.12(c)(ii) provides that the determination of treatment is made by CBP on a case-by-case basis. It discusses the relative weight of different types of evidence. It states, in pertinent part, that CBP "will give no weight whatsoever to informal entries or other entries or transactions which [CBP], in the interest of commercial facilitation and accommodation, processes expeditiously and without examination or [CBP] officer review." Subpart (c)(iii) sets forth situations in which CBP will not find treatment. Among them is where a person made a material false statement or material omission which affected the determination on which the treatment claim is based. 19 CFR §177.12(c)(iii)(C). Subpart (c)(iv) discussed the evidentiary burden of the importer. 19 CFR §177.12(c)(iv).

As each of the parts directly relates to the determination of whether treatment exists, the subparts of 19 CFR §177.12(c) must be read in pari materia. As such, satisfying (c)(i) in and of itself is not enough. However, we do not believe Protestant satisfies (c)(i), specifically (c)(i)(A). Counsel submitted that Protestant received an "oral classification opinion" from an import specialist from the Port of Cleveland in August 1999 that classification of the instant toothbrushes in heading 9603, HTSUS, was correct. In fact, there is no such legal animal as an oral classification opinion. Part 177.1(b) of the CBP Regulations clearly states that oral opinions or advice of CBP personnel are not binding. Therefore, oral advice cannot constitute an "actual determination" by a CBP officer as described in §177.12(c)(i).

Oral advice is not binding upon the agency, in part because there is generally no evidence to establish that the CBP officer had a full and complete description of the good or was provided a sample to review. In this case, the evidence establishes simply that the import specialist agreed with a proposed classification during a telephone conversation on a description of a product that may or may not have fully and completely described the "Spinbrush." We cannot assume the facts were squarely before the CBP officer.

Even if there had been an actual determination, protestant's liquidations demonstrating two years of liquidation history under heading 9603, HTSUS, were all liquidated on bypass status. They are entries or transactions made without an actual determination, which are processed expeditiously and without examination or review in the interest of commercial facilitation and accommodation. As is strongly stated in subpart (c)(ii), CBP gives "no weight whatsoever" to such liquidations.

We note that the Court of International Trade recently issued a decision seemingly contrary to the CBP regulations regarding treatment and expeditiously liquidated entries. See Motorola, Inc. v. United States, Slip. op. 2004-102 (Aug. 13, 2004). CBP is currently appealing that decision. Moreover, the claim for treatment was made prior to the issuance of Motorola and is therefore not controlling.

Moreover, Spinbrush filed a prior disclosure that their goods were misclassified in 9603, HTSUS. A prior disclosure is the disclosure of the circumstances of a violation of 19 U.S.C. §1592 or §1593(a). As provided for in Section 162.74 of the CBP Regulations (19 CFR §162.74), a prior disclosure includes material false statements, omissions or acts. As such, a prior disclosure is an implicit admission of negligence. Accordingly, no treatment will be found where there has been a material false statement or material omission which affected the determination on which the treatment claim is based. 19 CFR §177.12(c)(iii)(C). That is, an importer cannot benefit from his unclean hands. Though protestant's admission was intended to cover only a specified period of time, CBP voluntary reliquidated entries predating the specified time period, pursuant to 19 U.S.C. §1501.

A CBP officer may voluntary reliquidate entries within 90 days of the original liquidation, on his own volition or where an error was brought to CBP's attention by an interested party, "to correct errors, such as clerical errors, flawed application of the Explanatory Notes in a Customs Ruling, or liquidation undertaken with incorrect or inadequate factual support." Fujitsu Compound Semiconductor, Inc. v. United States, 363 F.3d 1230, 1233 (Fed. Cir. 2004) (citing to ITT Corp. v. United States, 24 F.3d 1384, 1387 (Fed. Cir. 1994)). He may do so even where a protest has been filed. See 19 CFR §173.3(a). Hence, an importer's use of reasonable care has no bearing on voluntary reliquidation, as counsel has suggested.

CBP's reliquidation subsequent to the filing of Protestant's prior disclosure indicates that CBP undertook to review the classification of the goods which they had not reviewed previously. The error in classification was brought to CBP's attention in the prior disclosure, but the voluntary reliquidation shows that a CBP officer then determined whether the error had existed prior to the time period in the prior disclosure, and determined it had. Though the protestant may have believed HQ 965440 (the Swiffer Wet Jet ruling) to be the first enunciation of the scope of heading 8509, HTSUS, and that its good was previously classifiable according to GRI 3(c) in heading 9603, HTSUS, it was not. See Section I, supra, regarding the plain language of heading 8509, HTSUS. The CBP officer's citation of HQ 087396, dated December 4, 1990, on the Customs Form 6445A further establishes that HQ 965440 is not the only controlling ruling in this case.

For the foregoing reasons, Spinbrush cannot establish it had treatment previously accorded to substantially identical transactions such that CBP would have to publish a change in treatment subject to notice and comment, pursuant to 19 U.S.C. 1625(c)(2). The treatment claim is denied.

Counsel argues that nothing in the regulations requires that an "actual determination" be written. Counsel claims support from the Court of International Trade in Precision Specialty Metals, Inc. v. United States, 116 F. Supp. 2d 1350 (CIT 2000) ("Precision I") and Precision Specialty Metals, Inc. v. United States, 182 F. Supp. 2d 1314 (2001) ("Precision II") that treatment is based on CBPs actions in light of the totality of the circumstances. That is, counsel asserts that the actions of oral advice combined with two years of liquidations under heading 9603, HTSUS, constitute treatment. However, the facts and circumstances surrounding those cases are different from those involved here; and therefore, are not controlling.

HOLDING:

The Spinbrush toothbrushes are classified in subheading 8509.80.0045, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for " Electromechanical domestic appliances, with self-contained electric motor; parts thereof: Other appliances: Electric toothbrushes." The rate of duty is 4.2% ad valorem.

The Spinbrush replacements heads are classified in subheading 9603.21.0000, HTSUS, which provides for, "Brooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees): Toothbrushes, shaving brushes, hair brushes, nail brushes, eyelash brushes and other toilet brushes for use on the person, including such brushes constituting parts of appliances: Toothbrushes, including dental-plate brushes. The rate of duty is free.

Since the rate of duty under the classification indicated above for the replacement heads is the same as the liquidated rate, you are instructed to DENY the protest in full.

In accordance with the Protest/Petition Processing Handbook (CIS HB, June 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Bureau of Customs and Border Protection Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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