CLA-2 RR:CR:GC 962310 MGM
Ms. Cecilia Castellanos
Executive Vice President
Western Overseas Corporation
P.O. Box 90099
Long Beach, CA 90809-0099
RE: “SOBAKAWA? Pillow” Flax Seed Eye Mask; Revocation of NY B86429
Dear Ms. Castellanos:
This office has determined that New York Ruling Letter (NY) B86429, issued to you on June 23, 1997, in response to your letter of June 12, 1997, on behalf of Yanko Herb, Incorporated, requesting a ruling regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of the “SOBAKAWA? Pillow” flax seed eye mask is in error. NY B86429 classified the “SOBAKAWA? Pillow” flax seed eye mask in subheading 3005.90.50, HTSUS, the residual provision for wadding, gauze, bandages and similar articles. This ruling revokes NY B86429 and sets forth the correct classification of the “SOBAKAWA? Pillow” flax seed eye mask.
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 46 of the CUSTOMS BULLETIN, published on November 18, 1998. In that notice Customs stated its intention to revoke NY B86429 and classify this merchandise in subheading 1204.00.00, HTSUS, as flaxseed. Upon further review and consideration of this matter, we determined that this merchandise is not properly classified in subheading 1204.00.00, HTSUS. In Volume 33, Number 8/9 of the CUSTOMS BULLETIN, published on March 3, 1999, Customs stated its intention to revoke NY B86429 and classify the “SOBAKAWA? Pillow” flax seed eye mask 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 “SOBAKAWA? Pillow” consists of a small, sealed pouch, which is constructed from woven fabric and filled with flax seeds (7.5 oz.). According to the instructions on the insert, the individual, after lying down or reclining, places the pouch, mask-like, across the bridge of the nose and over the eyes, in order to rest and soothe the eyes. It can also be chilled in a freezer prior to use. The product is put up for retail sale in a sealed polybag.
ISSUE:
What is the proper tariff classification of the “SOBAKAWA? Pillow” flax seed eye mask?
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 their appropriate order. 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).
Heading 3005, HTSUS, 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 ailing portion of the body. The “SOBAKAWA? Pillow” flax seed eye mask is not designed or marketed for such a purpose and is therefore not “a similar article.” Furthermore, this heading is limited to items which are for “medical, surgical, dental or veterinary purposes.” While the instant product does purport to soothe the eyes, such action does not amount to medical treatment of an ailment, thus it is not properly classified in heading 3005, HTSUS.
Neither does any other heading describe the “SOBAKAWA? Pillow” flax seed eye mask. 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 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 flax seeds provide the greater part of the item’s bulk and weight. In addition, they are understood to perform the primary soothing function. Thus, the essential character of the “SOBAKAWA? Pillow” flax seed eye mask is found in the flax seeds.
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 “Anti-Stress Eye Pillow.” 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 “SOBAKAWA? Pillow” flax seed eye mask 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 flax seed,” the “SOBAKAWA? Pillow” flax seed eye mask 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 was held that the dried flowers provided the essential character of the article and it was therefore classified in heading 1404.90.00, HTSUS.
HOLDING:
The “SOBAKAWA? Pillow” flax seed eye mask is classified in subheading 1404.90.00, HTSUS.
NY B86429 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