CLA-2 CO:R:C:M 957182 KCC
Teresa A. Gleason, Esq.
Baker & McKenzie
815 Connecticut Avenue, N.W.
Washington, D.C. 20006-4078
RE: Body Pad/Back Warmer, Pocket Warmer, and Comfort Wrap; textile jacket; microwavable energy pack; wax; GRI 3(b); composite good; essential character; EN Rule 3(b); HRL 956845; HRL 083349; HRL 087501; 3926.90.95; EN 39.26; other articles of plastics and articles of other materials of headings 3901 to 3914; other made up articles
Dear Ms. Gleason:
This is in regards to your letters dated August 26, and October 14, 1994, on behalf of R.G. Barry Corporation, to Customs in New York, concerning the tariff classification of a body pad/back warmer, pocket warmer, and comfort wrap under the Harmonized Tariff Schedule of the United States (HTSUS). A sample of each article and a copy of the front, back and side panels of the prototype box for the body pad/back warmer were submitted for our examination.
FACTS:
Each of the articles contains a microwaveable energy pack which, when heated, is designed to keep a part of the body, i.e. hands, back, arms, etc., warm for an extended period of time. The articles at issue are described as follows:
1. The body pad/back warmer consists of a 10 3/4 x 7 1/4 inch energy pack that is inserted into a textile pouch. The textile pouch has a belt mechanism, so that the body pad/back warmer can be wrapped around or secured to the body part to be warmed.
2. The pocket warmer consists of a 5 1/4 x 2 3/4 inch pink energy pack that is inserted into a textile pouch. It is designed to be placed into a pocket to keep the hands warm.
3. The comfort wrap consists of the 10 3/4 x 7 1/4 inch energy pack and a 100% acrylic knit pouch with a polyester foam and nylon knit lining measuring 12 x 5 ½ inches. A 89% nylon and 11% spandex sleeve is attached to one side of the textile pouch. A velcro belt made of polyproylene will be attached to the opposite side of the pouch. The sleeve and velcro belt are used to secure the comfort wrap to a particular area of the body.
The energy packs for the body pad/back warmer and comfort wrap consist of plastic foam, wax, water, small amounts of emulsifying agents and anti-bacterial agents sealed in plastic. The energy pack for the pocket warmer is slightly different in that it consists of plastic shell filled with silica sand, paraffin wax and a non-toxic coloring agent to make the silica sand granules pink. The energy packs are designed to be placed in a microwave oven where the water or sand is heated by the microwaves to raise the temperature of the energy pack. The wax component is not heated by microwave energy; it is heated through contact with the heated water or sand. When the wax is heated by the water or sand above approximately 50? Celsius, it melts and absorbs a significant amount of energy. During use, the wax solidifies, slowly releasing its heat energy.
You have provided the following breakdown figures for the various energy packs:
Component
Pocket Warmer Pack
Energy Pack
Temperature Strip
Body & Comfort Pad Pack
Liquid Emulsion
Clear Outer Coex Bag
White Inner Coex Bag
Form
Temperature Strip
Cost
$.92
$.14
$.67
$.21
$.19
$.09
$.14
Weight (Oz.)
3 total
"
19
.5 total for all remaining components
"
"
You state that the U.S. Food and Drug Administration (the FDA) has informally confirmed that the body pad/back warmer, comfort wrap and pocket warmer do not fall under the jurisdiction of the FDA. You cite to the Federal Food, Drug and Cosmetic Act which applies to medical devices, i.e., instruments which affect the "structure or function of the body" or are "intended for use in the...cure, mitigation, treatment, or prevention of disease." 21 U.S. C. section 321(h). You state that the FDA considers heating pads to be medical devices when claims are made that they will cure or mitigate a medical condition, e.g., "soothes sore muscles" or "lessens pain due to arthritis." You state that R.G. Barry will assert no such claims, but will emphasize that its thermal products provide "warmth" or "soothing warmth."
ISSUE:
1. What is the tariff classification of the body pad/back warmer, pocket warmer and comfort wrap under the HTSUS?
2. What is the tariff classification of the body pad/back warmer and pocket warmer imported without the energy pack under the HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, 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...."
When, by application of GRI 2, HTSUS, goods are prima facie classifiable under two or more headings, GRI 3, HTSUS, is applicable. In this case, classification is determined by application of GRI 3(b), HTSUS, which provides:
Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
In understanding the language of the HTSUS, Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN Rule 3(b)(IX)(pg. 4) states that:
For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts (emphasis in original).
We are of the opinion that the body pad/back warmer, pocket warmer and comfort warmer are composite goods because the components are adapted one to the other, mutually complementary, and together form a whole which would not normally be offered for sale in separate parts. See, Headquarters Ruling Letter (HRL) 083349 dated June 2, 1989, which classified a bun warmer consisting of a basket and textile lid and liner as a composite good; and HRL 087501 dated July 26, 1990, which classified a textile beverage can wrap and plastic freezable insert pack as a composite good. Therefore, to classify these articles, we need to determine which component imparts the essential character.
In general, essential character has been construed to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. In addition, EN Rule 3(b) (pg. 4), provides further factors which help determine the essential character of goods. Factors such as bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods are to be utilized, though the importance of certain factors will vary between different kinds of goods.
In HRL 956845 dated December 22, 1994, we classified a wristband, headband, hardhat pad and vest made of textile materials with sewn in plastic polymer beads for cooling. Pursuant to GRI 3(b), HTSUS, we determined that these articles were composite goods. With regards to which components imparted the essential character, we stated:
With respect to each of the instant articles, the textile component gives it its form and provides its means of performance. The cooling effect of the beads cannot be applied to the body of the wearer without the textile article. It is the wearing of the textile article, as in the case of the wristband, headband, and vest, or the attachment of the textile article to the object worn, as in the case of the hard-hat pad attached to the inside of the hard-hat, that allows the beads to function as intended. Without the made up textile article, the beads cannot be put to their intended use. On the other hand, it is the beads that provide the source of the cooling effect. Thus, articles of the instant kind have a dual aspect: as a textile article, such as a wristband or vest, and as a cooling mechanism.
The decision as to which component imparts essential character to the articles depends on an examination of the article and its dual aspects. All such articles will be capable of functioning as a cooling mechanism. This, however, does not mean that in all cases the cooling beads will impart essential character. Where the article also functions as a textile article in the ordinary manner, the cooling mechanism aspect of the article will not be viewed as imparting essential character. Where the textile article does not function in the ordinary manner, and thus appears only to be providing a medium through which the cooling beads are able to perform their intended function, the beads will be viewed as imparting essential character.
We are of the opinion that the rationale in HRL 956845 is applicable to the articles under consideration in this case. Based on HRL 956845, the energy packs provide the essential character to each of the articles. Each article has a dual aspect; the energy packs are designed to provide warmth to an object and the textile jackets provide the form and the means of performance. In this case, the textile jackets do not function in the ordinary manner; they only provide a medium through which the energy packs are able to perform their warming function. Therefore, the energy packs serve to distinguish each article. Since the energy packs impart the essential character, each article is classified under the tariff provision which provides for the energy pack.
There are two types of energy packs at issue. The energy packs for the body pad/back warmer and comfort wrap consists of plastic foam, wax, water, small amounts of emulsifying agents and anti-bacterial agents sealed in plastic. The energy pack for the pocket warmer is slightly different in that it consists of a plastic shell filled with silica sand, paraffin wax and a non-toxic coloring agent. We are of the opinion that the energy packs are composite goods which, pursuant to GRI 3(b), are classified according to the classification of the component which imparts the essential character to the energy pack. We are of the opinion that the wax imparts the essential character to the energy packs. It is the wax which releases the heat after the energy pack is heated. Wax is classified under subheading 2712.20.00, HTSUS, which provides for:
Petroleum jelly; paraffin wax, microcrystalline petroleum wax, slack wax, ozokerite, lignite wax, peat wax, other mineral waxes and similar products obtained by synthesis or by other processes, whether or not colored...Paraffin wax containing by weight less than 0.75 percent of oil.
Therefore, the body pad/back warmer, pocket warmer and comfort wrap are classified under subheading 2712.20.00, HTSUS, as paraffin wax.
You contend that the articles at issue are classified under subheading 3926.90.95, HTSUS, as other articles of plastics and articles of other materials of headings 3901 to 3914. As evidence of this classification, you cite HRL 087501 which classified a textile beverage can holder with freezable gel packet as a composite good. HRL 087501 held that the textile beverage holder imparted the essential character to the article and, therefore, classified the entire article under subheading 6307.90.9590, HTSUS, as other made up articles, including dress patterns.
Additionally, HRL 087501 stated that the freezable gel packet filled with polyvinyl alcohol was prima facie classifiable under heading 3926, HTSUS, as other articles of plastic. This classification was based on EN 39.26 (pg. 576) which stated that "[p]lastic containers filled with carboxymethylcellulose (used as ice-bags)" are classified under heading 3926, HTSUS. The energy packs at issue are not used as ice-bags, or filled with polyvinyl alcohol or carboxymethylcellulose. The energy packs are plastic containers, but they are used for warmth and are filled with either plastic foam, wax, water, small amounts of emulsifying agents and anti-bacterial agents, or silica sand, paraffin wax and a non-toxic coloring agent. We are of the opinion that they are not of the class or kind of article classifiable under subheading 3926.90.95, HTSUS.
We are of the opinion that the textile jackets for the body pad/back warmer and pocket warmer are classified under subheading 6307.90.9989, HTSUS, which provides for "Other made up articles, including dress patterns...Other...Other...Other...Other...Other."
HOLDING:
Pursuant to GRI 3(b), HTSUS, the body pad/back warmer, pocket warmer and comfort wrap are composite goods with the energy pack imparting the essential character to each article. The energy pack is also a composite good with the wax imparting the essential character. Therefore, each of the articles is classified under subheading 2712.20.00, HTSUS, as paraffin wax. Articles classified under this tariff provision enter the U.S. duty free.
The body pad/back warmer and pocket warmer imported without the energy pack are classified under subheading 6307.90.9989, HTSUS, as other made up articles. The corresponding duty rate for articles of this subheading is 7 percent ad valorem. Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) categories, you should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division