CLA-2 CO:R:C:T 950783 HP
Area Director
U.S. Customs Service
New York Seaport Area
Suite 716
6 World Trade Center
New York, NY 10048-0945
RE: Decorative Brooms; eo nomine; use; function; common; meaning
Dear Ms. Maguire:
This is in response to Memorandum CLA-2-96:S:N:N1:236-545,
dated November 26, 1991, from the Chief, National Import
Specialist Branch 1. That memo concerned the correct
classification, under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), of decorative twig brooms
generally unfit for actual use as brooms. We would recommend
circulation of this response to all National Import Specialists.
Please reference HRL 951106 of April 8, 1992, which also
addressed the concerns raised.
Heading 9603, HTSUSA, which provides for, inter alia, brooms
and brushes, is clearly an eo nomine provision. "An eo nomine
designation is one which describes a commodity by a specific
name, usually one well known to commerce." 2 R. Sturm, Customs
Law and Administration 53.2 (3rd ed. 1990). An eo nomine
designation, absent contrary intent by Congress or some
conflicting administrative practice or judicial authority,
includes all forms of the article. Nootka Packing Co. v. United
States, 22 C.C.P.A. 464, 469, T.D. 47464 (1935).
It would appear, therefore, that all brooms must be
classified within this heading. In HRL 951106 of April 8, 1992,
however, we classified a "broom wall pomander" - a decorative,
scented, wooden ornament measuring 14" x 7" and constructed of
strands of twigs bound by wire - under heading 4420, HTSUSA, as
an ornament of wood. In doing so, we did not determine whether
an eo nomine HTS provision must encompass all forms of an
article, but instead noted that the marketing name does not
control classification, and that broom wall pomander does not
conform to the stipulated use of brooms of heading 9603, HTSUSA.
As a result, your question - how use governs the classification
of goods under an eo nomine HTS provision - remained unanswered.
The common meaning of an eo nomine designation is determined
by the meaning it had at the time of enactment of the tariff act.
United States v. Brager-Larsen, 36 C.C.P.A. 1, 3-4, C.A.D. 388
(1948); Davies Turner & Co. v. United States, 45 C.C.P.A. 39,
C.A.D. 669 (1957). In their determination of what this "common
meaning" encompasses, Customs and the courts may examine the use
to which the imported goods are put. United States v. Quon Quon
Co., 46 C.C.P.A. 70, 73 ,C.A.D. 699 (1959). See also Sears
Roebuck & Co. v. United States, 790 F. Supp. 299, 14 Int'l Trade
Rep. (BNA) 1250 (Ct. Int'l Trade 1992) (citing Quon Quon). But
see Nestle-Lemur Co. v. United States, 37 Cust. Ct. 209, C.D.
1825 (1956) (use is not a necessary concomitant of articles
classifiable eo nomine as brushes if they respond to the name of
brush); Orazio J. Freni, d/b/a Saratoga Forwarding Co. v. United
States, 283 F. Supp. 89; 60 Cust. Ct. 319; Cust. Dec. 3375 (Mar.
27, 1968) (an article which indisputably responds to the name
"brush" is properly classifiable as a brush).
After reviewing the language of the above-cited court cases,
we find that it is proper to take use into account when
classifying an article under an eo nomine provision where the
common and commercial meaning of the article at the time the
tariff schedule was drafted included references to use. See
Admiral Div. of Magic Chef, Inc. v. United States, 754 F. Supp.
881, (Ct. Int'l Trade 1990) (it is necessary to examine
legislative history and other extrinsic sources to determine the
common meaning of merchandise); Hummel Chemical Co. v. United
States, 29 C.C.P.A. 178, 183, C.A.D. 189 (1941) (tariff terms
generally "are not drafted in terms of science, but in the
language of commerce, which is presumptively that in common use."
The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System (Harmonized System) (1986 edition
supplemented through January 1992) constitute the official
interpretation of the scope and content of the tariff at the
international level. While not legally binding, they do
represent the considered views of classification experts of the
Harmonized System Committee. It has therefore been the practice
of the Customs Service to follow, whenever possible, the terms of
the Explanatory Notes when interpreting the HTSUSA. The EN to
heading 9603, HTSUSA, describes, at 1601, brooms and brushes,
consisting of twigs or other vegetable materials bound together,
with or without handles, as:
... rather roughly made articles, with or
without handles, used mainly for sweeping the
ground (streets, yards, stables, etc.) or
floors (e.g., vehicle floors). They usually
consist either of a single bundle of
vegetable materials (twigs, straw, etc.)
roughly bound together, or of one or more
bundles of thick straw or reeds forming a
core on which thinner and longer straw is
fixed with textile threads; these textile
threads may at the same time form decorative
motifs. For use, these articles are
generally mounted on a handle. [Emphasis
added].
In addition, both modern dictionaries and Nestle-Lemur era
lexicons incorporate within their definitions of brooms and
brushes language similar to "used for" sweeping, cleaning,
scraping, painting, etc.
It is our opinion that where an article, which may or may
not be advertised with the words "broom" or "brush", is
constructed so that it cannot perform the functions described by
the Explanatory Notes and the various lexical sources, that
article does not fall within the common meaning of "brooms and
brushes" of heading 9603, HTSUSA. See also Keer, Maurer Co. v.
United States, 32 Cust. Ct. 441, Abstract 57959 (articles
embraced by the term brush exhibit a "brush-ing" action in their
use). Accordingly, such articles are properly classified
according to their constituent materials and/or other use.
Sincerely,
John Durant, Director
Commercial Rulings Division