CLA-2 RR:CR:GC 961089 MGM
Mr. John Sveum
Tower Group International, Inc.
P.O. Box 269
Sweetgrass, MT 59484
RE: “PitPacs” Heating and Cooling Pads; Revocation of NY A83830
Dear Mr. Sveum:
This office has determined that New York Ruling Letter (NY) A83830, issued to you on May 31, 1996, in response to your letter of May 13, 1996, on behalf of The Cherry Tree Ltd., requesting a ruling regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of “PitPacs” heating and cooling pads is in error. NY A83830 classified “PitPacs” heating and cooling pads in subheading 3005.90.50, HTSUS, the residual provision for wadding, gauze, bandages and similar articles. This ruling revokes NY A83830 and sets forth the correct classification of “PitPacs” heating and cooling pads.
Pursuant to section 625 (c)(1), Tariff Act of 1930 (19U.S.C. 1625 (c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation was promulgated in Volume 32, Number 48 of the CUSTOMS BULLETIN, published on December 2, 1998. In that notice Customs stated its intention to revoke NY A83830 and classify this merchandise in subheading 1212.99.00, HTSUS, as fruit stones. Upon further review and consideration of this matter, we determined that this merchandise is not properly classified in subheading 1212.99.00, HTSUS. In Volume 33, Number 8/9 of the CUSTOMS BULLETIN, published on March 3, 1999, Customs stated its intention to revoke NY A83830 and classify the “PitPacs” heating and cooling pads in subheading 1404.90.00, HTSUS, as a vegetable product not elsewhere specified or included. No comments were received in response to this notice.
FACTS:
The “PitPacs” heating and cooling pads consist of cherry pits, which have been washed and dried, and encased in a cotton bag. The bag may be 9" x 9", or 4.5" x 18". The descriptive literature which accompanies the product indicates that it may be heated in a microwave oven, standard oven, or double boiler, or cooled in a freezer. In its heated or cooled state, it is applied to the body to reduce tension, aches, and pains.
ISSUE:
Whether “PitPacs” heating and cooling pads are classified in heading 3005, HTSUS, as wadding, gauze, bandages and similar articles?
If not, does any other heading describe “PitPacs” heating and cooling pads?
If not, what material imparts the essential character to “PitPacs” heating and cooling pads?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
In NY A83830, dated May 31, 1996, this article was classified in heading 3005, HTSUS. This heading provides as follows:
3005 Wadding, gauze, bandages and similar articles (for example, dressings, adhesive plasters, poultices), impregnated or coated with pharmaceutical substances or put
up in forms or packings for retail sale for medical, surgical, dental or veterinary purposes.
Under the rule of ejusdem generis, the phrase “similar articles” is limited to goods which “possess the essential characteristics or purposes that unite the articles enumerated eo nomine.” Totes, Inc. v. U.S., 69 F.3d 495, 498 (Fed. Cir. 1995) (citing Sports Graphics, Inc. v. United States, 24 F.3d 1390 (Fed. Cir. 1994)). The characteristic which unites the exemplars of this heading is their direct application to an open wound or to irritated skin. Furthermore, this heading is limited to items which are for “medical, surgical, dental or veterinary purposes.” While the instant product does purport to reduce tension, aches, and pains, the “PitPacs” heating and cooling comfort pad is more in the nature of a general tonic rather than an item with a definable medical purpose. Thus it is not properly classified in heading 3005, HTSUS.
Neither does any other heading of the nomenclature describe the “PitPacs” heating and cooling pad. Where goods cannot be classified according to GRI 1, the remaining GRIs are applied in order. GRI 2 (b) states that “any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances...The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3 (b) states that goods which are prima facie classifiable under two or more headings and consist of different materials or are made up of different components shall be classified as if they consisted of the material or component which gives them their essential character.
Factors which determine essential character may include bulk, quantity, weight, value, or the role of a constituent material in relation to the use of the goods. Explanatory Note VIII to GRI 3. Here, the cherry pits provide the greater part of the item’s bulk and weight. In addition, the cherry pits are not highly conductive of temperature, thus they retain the heat or cold for a period of time after removal from the heating source or freezer. Thus, the essential character of the “PitPacs” heating and cooling pad is found in the cherry pits.
The Harmonized System Committee (HSC) of the World Customs Organization (formerly the Customs Co-operation Council) has issued a report regarding the classification of “certain substances or materials put up in certain forms for specific use rather than general use” at its 22nd Session in November of 1998. HSC Nov. 98, 42.444. The decisions found in this report indicate that where a composite article, put up for a specific use, is classified according to the material which imparts the essential character to the merchandise, the merchandise is to be classified as an article of the material rather than as the primary form of the material. The Committee Report further stated that “the Committee had not decided on a general principle which would cover the classification of all products put up in certain forms for specific uses.” These decisions did not result in an amendment to the Explanatory Notes nor in the issuance of a classification opinion
Decisions of the HSC are advice and guides to the interpretation of the Harmonized Schedule. The decisions are not binding, but Customs considers that they often provide valuable insight into how the HSC views certain provisions. Decisions which are merely given in the report are accorded relatively less weight than those decisions for which a classification opinion is issued and added to the Compendium of Classification Opinions or those decisions embodied as an amendment to the Explanatory Notes. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
There is no precedent which directly addresses classification of composite products put up for specific uses, however the Court of International Trade has decided the classification of a product somewhat analogous to the “PitPacs” heating and cooling pad. Pillowtex Corp. v. U.S., 983 F.Supp 188 (C.I.T. 1997). In Pillowtex, the court classified comforters which consisted of an outer shell of woven cotton and stuffing of down. In choosing the appropriate subheading, the court considered classification as a “comforter of cotton” or as a comforter of “other” than cotton. The court referred to the principles of GRI 3 (b) in holding that it would be improper to classify the comforter as an “article of cotton” because its essential character was imparted by the down stuffing. Despite the down stuffing supplying the essential character, there is no mention of classification as down in its primary form. This suggests that the court views composite products for specific uses in a manner congruent with the HSC, that is, as articles of the material which imparts the essential character.
Thus it appears that the “PitPacs” heating and cooling pad is to be classified as an article of the material from which it draws its essential character. As there is no provision in the HTSUS for “articles of cherry pits,” the “PitPacs” heating and cooling pad falls in heading 1404, HTSUS, as a “Vegetable product not elsewhere specified or included.”
Heading 1404, HTSUS, is not limited only to raw vegetable materials. HQ 959719, dated October 21, 1997, classified decorative stickers consisting of dried flowers vacuum sealed between discs of plastics with an adhesive coating on one side. It held that the dried flowers provided the essential character of the article and the merchandise was therefore classified in heading 1404.90.00, HTSUS.
HOLDING:
The “PitPacs” heating and cooling pad is classified in subheading 1404.90.00, HTSUS.
NY A83830 is revoked. In accordance with 19 U.S.C. 1625 (c)(1), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN.
Sincerely,
John Durant, Director
Commercial Rulings Division