CLA-2 RR:TC:MM 959906 HMC
Port Director of Customs
P.O. Box 1490
St. Albans, VT 05478
RE: PRD 0201-96-100297; Braun Style Shaper HS3; headings 8479,
8516 and 9603; subheadings 8516.31.00, 8516.32.00 and 9630.29.80;
Section XVI, Note 1(o); Chapter 85; Explanatory Notes 85.16 and
96.03; Brushes Constituting Parts of Machines, Appliances or
Vehicles; Electrothermic Hairdressing or Hand Drying Apparatus;
Appliance; HQ 959712.
Dear Port Director:
This is our decision on Protest 0201-96-100297, filed
against your classification of the Braun Style Shaper HS3. The
entries under protest were liquidated on May 24, 1996, and this
protest timely filed on August 22, 1996.
FACTS:
The merchandise under protest is the Braun Style Shaper HS3
(hair shaper). The hair shaper is a 7« inch hairbrush with a
butane gas energy cell in its handle. The butane gas cell heats
the hairbrush to mold hair by powering a flameless heating
system. The heating system heats the brush in just 90 seconds
and an indicator advises the user when the brush is ready to use.
The butane gas cell allows the hair shaper to be self-powered and
cordless without using any outside power source.
The merchandise was entered under subheading 8479.89.95 of
the Harmonized Tariff Schedule of the United States (HTSUS), as
other machines and mechanical appliances. However, the entries
were liquidated under subheading 8516.31.00, HTSUS, based on the
assumption that the hair shaper was powered by electricity.
Based on evidence that the hair shaper is powered by butane gas,
classification as a hairbrush under subheading 9603.29.80, HTSUS,
is also under consideration.
The 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:
Other:
8979.89.95 Other...3%
* * * *
8516 Electric instantaneous or storage water
heaters and immersion heaters; electric space
heating apparatus and soil heating apparatus;
electrothermic hairdressing apparatus (for
example, hair dryers, hair curlers, curling
tong heaters) and hand dryers; electric
flatirons; other electrothermic appliances of
a kind used for domestic purposes; electric
heating resistors, other than those of
heading 8545; parts thereof:
Electrothermic hairdressing or hand-drying apparatus:
8516.31.00 Hair dryers...3.9%
8516.32.00 Other hairdressing
apparatus.....3.9%
* * * *
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:
9603.29 Other:
9603.29.80 Valued over 40›
each...0.3› each + 3.6%
ISSUE:
Whether the Braun Style Shaper HS3 is classifiable as a
hairbrush constituting a part of an appliance under subheading
9603.29.80, HTSUS, or as an other electrothermic hairdressing or
hand-drying apparatus under subheading 8516.31.00, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance
with the General Rules of Interpretation (GRIs). GRI 1 states in
part that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized system. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the notes should always be consulted. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (Aug. 23, 1989).
Protestant contends that the merchandise is appropriately
classified under subheading 8516.31.00, HTSUS, as an
electrothermic hairdressing or hand-drying apparatus. We do not
agree. Chapter 85, HTSUS, provides in pertinent part, for
electrical machinery and equipment and parts thereof. EN 85.16
at page 1470 states that this group includes all electrothermic
machines and appliances provided they are normally used in the
household. Since the hair shaper is not powered by electricity,
it does not fall within the definition of electrothermic, "[o]f
or relating to the production of heat by electricity." See HQ
959712. The hair shaper is therefore not provided in heading
8516, HTSUS. Furthermore, we note Section XVI, Note 1(o) which
states that brushes of a kind used as parts of machines fall in
heading 9603.
Heading 9603 provides for brushes, including brushes
constituting parts of machines, appliances or vehicles. An eo
nomine designation, without limitation or a shown contrary
legislative intent, judicial decision, or administrative
practice, and without proof of commercial designation, will
include all forms of the article. Sturm, Ruth, Customs Law and
Administration, Vol. 2., 53.2, p. 3. Also, EN 96.03 at page
1727 states that this group comprises a variety of articles,
differing considerably both in materials and shape, used for
toilet purposes, etc. Further, this group includes:
(3) Brushes for toilet use (e.g.,brushes for the hair,
beard, moustache or eyelashes; nail brushes; brushes for
hair dyeing, etc.) hairdressers' neck brushes.
(4) Brushes of rubber or plastics, molded in one piece, for
toilet use (washing hands, etc.), for cleaning lavatory
pans, etc.
In this instance, the Protestant has not provided any proof,
contrary legislative intent, judicial decision or administrative
practice why the hair shaper is not an article of heading 9603.
The evidence presented indicates that the hair shaper is a
hairbrush molded in one piece and intended for toilet use. It
contains a butane gas energy cell in its handle which provides
power to a flameless heating system. We believe that the Braun
Style Shaper HS3 is a form of brush described in heading 9603.
We find that it is classifiable under subheading 9603.29.80,
HTSUS, as other hairbrushes constituting parts of appliances,
valued over 40› each.
HOLDING:
Under the authority of GRI 1, the Braun Style Shapers HS3
are provided for in heading 9603, HTSUS. They are classifiable
in subheading 9603.29.80, HTSUS, as other hairbrushes, valued
over 40› each. The rate of duty is 0.3› each plus 3.6%.
This protest should be DENIED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, you should 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 take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals Division