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HQ 950783

September 10, 1992

CLA-2 CO:R:C:T 950783 HP


TARIFF NO.: 9603

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.


John Durant, Director
Commercial Rulings Division

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