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HQ W967698




March 10, 2006

CLA-2 RR:CTF:TCM 967698 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 8509.80.0095

Area Port Director
Bureau of Customs and Border Protection
198 West Service Road
Champlain, NY 12919

RE: Cordless Sweeper; IA 05/004

Dear Area Port Director:

The following is our decision regarding your memorandum (CLA-2-85 CLN), dated March 25, 2005, forwarding Internal Advice (IA) 05/004 which was initiated by counsel on behalf of Euro-Pro Corp., and which concerns the classification of the Shark Cordless Sweeper under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The article involved is a Shark cordless sweeper. This is a battery operated floor sweeper. It weighs 3.6 pounds and has major components consisting of a plastic body, motor, gearbox, battery, dust container, rotating brush, edging tool, lower handle and metal extension handles, and a charger. The importer believes that the Shark cordless sweeper should be classified in subheading 8509.10, HTSUSA, as a vacuum cleaner, or in the alternative, in subheading 8479.89.70, HTSUSA, as a carpet sweeper.

ISSUE:

Is the Shark cordless sweeper a vacuum of subheading 8509.10, HTSUSA, a carpet sweeper of subheading 8479.89.70, 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:

8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:

Other machines and mechanical appliances:

8479.89 Other:

8479.89.7000 Carpet sweepers

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

8509.10.00 Vacuum cleaners, including dry and wet vacuum cleaners:

Other:

Other:

8509.10.0070 Weight not exceeding 5 kg

8509.80.00 Other appliances:

8509.80.0095 Other

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 Shark cordless 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 Shark cordless sweeper. Pursuant to Section XVI, Note 2, the battery and battery charger will be classified with the Shark cordless sweeper.

Chapter Note 1(e) for Chapter 84 excludes from the chapter “Electromechanical domestic appliances of heading 8509.” As discussed below and as the importer asserts, the Shark cordless sweeper is classifiable in heading 8509, therefore, it may not be classified in chapter 84. Further, in reading the provisions of heading 8479 and the attendant ENs for the heading, the articles included in the heading appear to be of an industrial nature rather than for home use. Therefore, we find that heading 8479 is not an appropriate classification for the residential Shark cordless 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.

A non-limited class of articles are classified in this heading provided their weight is 20 kg or less.

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 Shark cordless sweeper is marketed by the manufacturer as a “sweeper,” not a “vacuum.” Indeed the manufacturer’s website specifically distinguishes it’s stick vacuum models from the sweeper models. The importer provided a page from an internet auction site which had six listings for the Shark cordless sweeper. We note that five of six the listings described it only as a “sweeper.” The importer also provided information from one retailer which in one store described the article as a “Shark Vacuum”. We do not find this convincing. The importer also provided a description from an internet sales site which described the Shark cordless sweeper as having “vacuum suction without the hassle of a vacuum cord!” While this self-serving description compares the sweeper to a vacuum cleaner, it tacitly acknowledges that it is, indeed, not actually a vacuum cleaner.

Further, the Shark cordless sweeper 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”. Although the ENs are not legally binding, CBP does give the ENs considerable weight in defining terms in the HTSUSA. See T.D. 89-80, supra. We note that the ENs do not apply to many of today’s vacuum cleaners, specifically “bagless” vacuum cleaners. 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 Shark cordless sweeper merely has rotating brushes which as a by-product produce a minimal amount of air movement. This is different from a vacuum cleaner. The motor of the Shark cordless 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.

The importer provided “Standard Terminology Relating to Vacuum Cleaners” (F 395-02), from the ASTM International (American Society for Testing and Materials), to provide alternate definitions for a vacuum cleaner. However, in reviewing the various definitions provided by ASTM International, it is evident that a separate suction mechanism is required and that the brushes (or agitator) are only an accessory. The ASTM International description for “dirt receptacle first vacuum cleaner system” states “[t]he separated air is then pulled through the fan (by-pass) or fan and motor (flow through) and expelled from the cleaner.” The ASTM International also discusses the “fan first vacuum cleaner system”. Both of these descriptions show that a “fan” system for providing suction is a necessary requirement for a vacuum cleaner. The ASTM International descriptions also show that a rotating brush (an agitator) is only to “assist” a vacuum cleaner’s operation, not provide the main means of cleaning. The description for the “stick vacuum cleaner” states that “[t]he cleaner may contain a driven agitator to assist in dirt removal on floor surfaces.” (Emphasis added) See also, ASTM International descriptions of “hand-held vacuum cleaner” and “upright vacuum cleaner.”

The importer submitted a test report dated March 31, 2004, by which they seek to demonstrate that the Shark cordless sweeper produces an airflow. The report shows that the article when operating can produce airflow which causes more evaporative cooling than a non-operative article. We acknowledge that the sweeper produces some airflow. However, as discussed above, this is merely a slight movement of air caused as a by-product of rotating brushes. This slight air movement is not the main method of cleaning for the sweeper and does not meet the definitions of a vacuum described above.

CBP has previously held that sweeper devices similar to the instant device are not classified as vacuums. In HQ 967904 (December 21, 2005), involving a motorized cordless sweeper, CBP cited the ENs and dictionary definitions to find that the cordless sweeper did not directly provide the required suction merely by having rotating brushes and therefore was not vacuum cleaner. 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 Shark cordless 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.”

HOLDING:

The Shark cordless 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 2006 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.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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