CLA-2 CO:R:C:M 955227 DFC
Stephen J. Leahy, Esq.
Leahy & Ward
Attorneys at Law
63 Commercial Wharf
Boston, Massachusetts 02110
Re: Insoles, heated, unfinished; Cambrelle cover; Footwear;
Composite goods; Essential character; GRI 2(a); GRI 3(b);
Note 1(a) to chapter 85; HQ 955105
Dear Mr. Leahy:
This is in reference to your letter dated September 7, 1993,
to the District Director of Customs in Boston, Massachusetts, on
behalf of Hotronic U.S.A. Inc., concerning the classification
under the Harmonized Tariff Schedule of the United States
(HTSUS), of a cambrelle cover and a heating element for a
footwarmer. Your letter, together with the sample and
descriptive literature, has been referred to this office for a
response.
FACTS:
The merchandise is a heating element with attached power
cord and a cambrelle cover. It is imported in a package
containing two heating elements, two cambrelle covers and is sold
to the ultimate purchaser in its condition as imported.
The round heating element measures approximately 2-1/8
inches in diameter with an attached power cord measuring
approximately 26 inches in length, with a fitting at the end
opposite the heating element. The heating element is said to
consist of an element disk and a microchip. The element disk is
paper thin and constructed of multiple layers of copper,
fiberglass and resin. The element serves to disburse the heat
generated by the microchip attached underneath the layers.
-2-
The microchip is located in the center of the element. The
temperature of the microchip is determined by the setting
selected on the battery pack. No information is provided in this
ruling request concerning the battery pack. However, in HQ
955105, issued to you on December 10, 1993, in response to
another ruling request dated September 7, 1993, we determined
that a rechargeable nickel-cadmium storage battery and a battery
charger, designed to power a footwarmer, were classifiable under
subheading 8507.30.00, HTSUS, the provision for nickel-cadmium
storage batteries.
The cambrelle cover [insole] is made from nylon. The cover
is in the shape of the sole of a foot. It measures approximately
12-1/4 inches in length and 4 inches in width at the midpoint.
One side of the cambrelle cover has a plastic sheet covering
an adhesive. The heating element is placed inside the footwear,
the cambrelle cover is cut to the correct shape and size, the
plastic sheet is removed and the cambrelle cover is placed over
the heating element, adhesive side down, to hold the heating
element in place.
It is your position that the importation qualifies as a
composite good pursuant to GRI 3(b), HTSUS, in that it consists
of two or more articles classifiable under different headings.
Further, you assert that the heating element imparts the
essential character to the merchandise which requires that it be
classified under subheading 8516.80.80, HTSUS, which provides for
electric heating resistors, other, with duty at the rate of 3.9%
ad valorem.
ISSUE:
Whether the merchandise is considered an unfinished or
incomplete heated insole pursuant to GRI 2(a), HTSUS, or is it
considered a composite good pursuant to GRI 3(b), HTSUS.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes, and, provided
such headings or notes do not otherwise require, according to
[the remaining GRI's taken in order]." In other words,
classification is governed first by the terms of the headings of
the tariff and any relative section or chapter notes.
-3-
It is our opinion that GRI 3(b), HTSUS, does not govern the
classification of the subject merchandise. As you are aware, the
first four GRI's are to be applied in order. GRI 2(a), HTSUS,
which we believe is applicable, reads as follows:
2. (a) Any reference in a heading to an article shall be
taken to include a reference to that article
incomplete or unfinished, provided that, as
entered, the incomplete or unfinished article has
the essential character of the complete or
finished article.
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, 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.
It is your position that the heating element gives the
essential character to the merchandise which appears to require
its classification under chapter 85, HTSUS. However, we must
consider Note 1(a) to chapter 85, HTSUS, which reads, as follows:
1. This chapter does not cover:
(a) Electrically warmed blankets, bed pads, foot-muffs
or the like; electrically warmed clothes, footwear
or ear pads or other electrically warmed articles
worn on or about the person[.]
It is our view that the exclusionary language in note 1(a)
to chapter 85, HTSUS, precludes classification of the incomplete
or unfinished heated insole therein. Clearly, this merchandise
is described within that portion of note 1(a) to Chapter 85,
HTSUS, which refers to "other electrically warmed articles worn
on or about the person." Further, we consider the incomplete or
unfinished heated insole to be an "article" in and of itself
rather than "part" of an article.
-4-
The heating element and the cambrelle cover [textile] have
the essential character of finished or complete removable insoles
or similar articles. Inasmuch as the heating element imparts the
essential character to the finished or complete insole, it is our
opinion that the incomplete or unfinished heated insole is
classifiable under subheading 6406.99.90, HTSUS, which provides
for removable insoles and similar articles, other, of other
materials, other. Although you state that the cambrelle cover
serves no function except to hold the heating element in place,
we are aware that cambrelle is widely used in footwear linings
and removable insoles because it is unusually good at wicking
away moisture and drying out, which is important in keeping the
foot comfortable.
You have also requested a ruling as to the tariff
classification of a piece of cambrelle identical in construction
to the one submitted but in the shape of a rectangle measuring
approximately 15 inches by 5 inches. The rectangular piece of
cambrelle has a piece of plastic covering the adhesive side of
the cambrelle described above.
We are unable to issue a ruling as to the tariff
classification of this merchandise based on the limited amount
of information before us. It is requested that you provide a
sample in its condition as imported. Also, we need information
as to what processes this merchandise is subject to after
importation. For example, whether the cambrelle goes to a
manufacturer for processing and if so, its condition when it
reaches the consumer. If the merchandise does go directly to the
consumer, what processing has to be accomplished by the consumer
to render the product usable.
HOLDING:
The merchandise is considered an unfinished or incomplete
heated insole pursuant to GRI 2(a), HTSUS.
The incomplete or unfinished heated insole is dutiable at
the rate of 18% ad valorem under subheading 6406.99.90, HTSUS.
Sincerely,
John Durant,
Commercial Rulings Division