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NY N003639




December 15, 2006

CLA-2-39:RR:NC:N2:221

CATEGORY: CLASSIFICATION

TARIFF NO.: 3924.90.5500

Mr. Steven Kayser
Loops Flexbrush, LLC
P.O. Box 2936
7152 Everett Road
Ferndale, WA 98248

RE: The tariff classification of toothbrush holders from China.

Dear Mr. Kayser:

In your letter dated November 10, 2006, you requested a tariff classification ruling.

You have submitted samples of two styles of molded plastic toothbrush holders and the toothbrushes for which they are designed. Both the toothbrushes and the holders are sold to prison inmates at correctional facilities and mental health facilities and must therefore conform to specific safety requirements. One requirement is that they must be manufactured using soft plastic materials that cannot be fashioned into a weapon. A second requirement is that if one product is stored inside another product, such as a toothbrush inside a toothbrush holder, then the holder itself must be made of clear or semitransparent material so that the correctional officers can see inside the container.

The toothbrush holders are available in two different constructions. One is soft and flexible, designed to allow both the toothbrush holder and the toothbrush inside to be twisted, flexed and bent. The holder is so soft that it cannot be made into a weapon to injure another inmate or correctional officer. The second construction is semi-rigid. The semi-rigid holder is also made of clear plastic so that the contents are easily visible. Each toothbrush holder is composed of two parts that fit together. One part slides inside the other for closure. This holder is a toilet article designed to store the toothbrush. The samples are being returned as you requested.

You suggest classification of the holder as a set with the toothbrush, since the holder is designed to be used with the flexible toothbrush. It is made in a size appropriate for the toothbrushes. The specialty toothbrushes are shorter than standard brushes, measuring either 3 inches or 4 ½ inches in length. The semi-rigid toothbrush holder measures 4 ½ inches in length, while the soft flexible toothbrush holder measures approximately 4 ¾ inches in length. Although the holders are designed for use with the toothbrushes they are not sold with the brushes inside. You state that the primary reason for this is to allow the correctional or medical facility the discretion to allow or deny a particular product to a high-risk inmate.

The Explanatory Notes to the Harmonized Tariff System provide guidance in the interpretation of the Harmonized Commodity Description and Coding System at the international level. Explanatory Note X to GRI 3(b) provides that the term "goods put up in sets for retail sale" means goods that: (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (b) consist of 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.

The toothbrush and toothbrush holder meet requirements (a) and (b) for classification as a set. However, they do not meet requirement (c) that the articles be put up in a manner suitable for sale directly to users without repacking. The price list indicates that the products are sold separately. The holders are sold as companion pieces. The customer may purchase toothbrushes alone or may purchase either style of toothbrush holder since each fits either style of flexible toothbrush. The toothbrushes are sold in cartons of 48 pieces and the holders are sold in cartons of 48 pieces. The articles are then resold individually to the inmates, who may purchase either article alone or in combination. The toothbrush holder is not considered to be a set with the toothbrush, and must be classified separately.

The applicable subheading for both styles of molded plastic toothbrush holders will be 3924.90.5500, Harmonized Tariff Schedule of the United States (HTSUS), which provides for tableware, kitchenware, other household articles and toilet articles, of plastics: other: other. The rate of duty will be 3.4 percent ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

Pursuant to title 19 United States Code, Section 3005, the Harmonized Tariff Schedule of the United States is expected to be amended effective 1/1/07. The amendments are expected to affect the classification of your merchandise. Pursuant to Section 3005 c, the report recommending those changes has been sent to the President for proclamation of the changes. Upon the expiration of sixty legislative days, in the absence of Congressional action, the recommended changes will become law. Accordingly, based on that recommendation, it is anticipated that your merchandise will be classified in subheading 3924.90.56 under the 2007 Harmonized Tariff Schedule. Under the circumstances, this classification under the 2007 tariff is advisory only.

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Joan Mazzola at 646-733-3023.

Sincerely,

Robert B. Swierupski
Director,

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