CLA-2 RR:CR:GC 959825 RTR
Teresa A. Gleason, Esq.
Baker & McKenzie
815 Connecticut Avenue, N.W.
Washington, D.C. 20006-4078
Re: Microwavable body pads/back warmers, pocket warmers and comfort wraps; subheading 2712.20; composite goods; mixtures; HQ 957182 modified.
Dear Ms. Gleason:
This is in reference to HQ 957182, which was issued to you on March 6, 1994, in response to your letters of August 26 and October 14, 1995, on behalf of R.G. Barry Corporation, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of microwavable body pads/back warmers, pocket warmers and comfort wraps (“microwavable articles”). As we advised you by letter of March 18, 1998, we have reviewed that ruling and have now determined that the classification of the microwavable articles imported together with energy packs is in error. However, the classification of the articles imported without the energy packs is correct. Therefore, this ruling modifies HQ 957182 only with respect to microwavable articles imported together with the energy packs. Their correct classification is set forth below.
FACTS:
In HQ 957182, we identified three microwavable articles, each comprising two distinct items: an energy pack and a textile pouch.
1. a body pad/back warmer, consisting of a 10 3/4 x 7 1/4 inch energy pack which is inserted into a textile pouch. The pouch has a belt mechanism, which enables the user to secure the body pad/back warmer to the body to provide warmth;
2. a comfort wrap consisting 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 sleeve (89% nylon and 11% spandex) is attached to one side of the pouch; a velcro belt made of polypropylene is attached to the opposite side of the pouch; the sleeve and velcro belt allow the user to secure the comfort wrap to the body to provide warmth.
3. a pocket warmer consisting of a 5 1/4 X 2 1/4 inch pink energy pack that is inserted into the textile pouch. It is designed to be placed into a pocket to keep provide the hands with warmth.
The energy pack of the body pad/back warmer and comfort wrap consists of an off-white polyurethane sheet soaked with a milky emulsion contained in a plastic film pouch. The polyurethane sheet provides integrity to the energy pack and also prevents the emulsion from dispersing to the corners of the pack when the pack is applied to the body. The polyurethane sheet does not play a role in heat retention. The emulsion consists of paraffin wax (solid at room temperature; liquid when heated), and an antibacterial agent (to retard putrification) in water. When the energy pack is heated in a microwave oven, it is the water, not the wax component, which is heated by the microwaves. As the water reaches 50 degrees Celsius, the wax melts and absorbs a significant amount of energy. As the wax cools, it slowly releases stored energy. During this phase, the energy pack can be inserted into a textile pouch and wrapped around the body to provide warmth.
The energy pack of the pocket warmer functions similarly to the energy pack of the body pad/back warmer and body wrap. That is, the paraffin wax contained in the pocket warmer is heated through contact with a medium. However, in the case of the pocket warmer, the medium is not water but silica sand. The microwaves heat silica sand, which in turn melts the paraffin wax. Thereafter, the process by which the stored energy dissipates to provide warmth is identical. In addition to silica sand and paraffin wax, the pocket warmer’s energy pack contains a non-toxic coloring agent which renders the sand pink, all of which is contained in a plastic shell.
ISSUE:
Whether the three articles are classified as a paraffin wax of heading 2712, HTSUS, or as a chemical preparation of heading 3824, HTSUS.
LAW AND ANALYSIS:
The provisions under consideration are as follows:
2712 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:
2712.20 Paraffin wax containing by weight less than 0.75 percent of oil
* * * *
3824 Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included:
3824.90 Other:
Other:
Mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances:
3824.90.28 Other:
Other:
3824.90.45 Mixtures that are in whole or in part of hydrocarbons derived in whole or in part from petroleum, shale oil or natural gas
* * * *
6307 Other made up articles, including dress patterns:
6307.90 Other:
Other:
6307.90.99 Other:
Other:
6307.90.9989 Other
* * * *
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. Pursuant to GRI 3(b), goods which are prima facie classified in two or more headings, and are equally specific in relation to one another, shall be classified as if they consisted of the material or component which gives them their essential character. As the GRIs must be applied in order, when merchandise is classified under GRI 1, no essential character analysis pursuant to GRI 3(b) is necessary (Bradford Industries, Inc., v. U.S., 968 F. Supp. 732 (1997)).
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
GRI 3 Consideration of the Energy Packs vs the Textile Pouch
The microwavable articles constitute composite goods, consisting of the textile pouch and the energy pack. Each component of the composite good can be classified in a separate heading by reference to GRI 1. Therefore, we must resort to GRI 3 to classify them. GRI 3(a) is inapplicable because the HTSUS provisions under consideration each describes only a single part of the article, and the headings are equally specific in relation to one another. Thus, we must rely on GRI 3(b) and determine from which component the articles take their essential character.
EN Rule 3(b)(VIII) (at page 4) lists the following factors to help determine the essential character of goods: the nature of the materials or components, their bulk, quantity, weight or value, and the role of a constituent material in relation to the use of the goods.
Recently, there have been several Court decisions on "essential character" for purposes of GRI 3(b). Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d 969 (Fed. Cir. 1997), involved the classification of shower curtain sets, consisting of an outer textile curtain, inner plastic magnetic liner, and plastic hooks. Customs had classified the sets on the basis of the textile curtain under the "default rule of GRI 3(c)", after determining that neither the relative specificity test nor the essential character test was applicable (119 F.3d at 971). The CIT found that the plastic liner performed the indispensable function of keeping water inside the shower and therefore held that the plastic liner imparted the essential character upon the set. In its decision affirming the CIT decision, the CAFC stated:
The [CIT] carefully considered all of the facts, and, after a reasoned balancing of all the facts, concluded that Better Home Plastics offered sufficient evidence and argument to overcome the presumption of correctness. The court concluded that the indispensable function of keeping water inside the shower along with the protective, privacy and decorative functions of the plastic liner, and the relatively low cost of the sets all combined to support the decision that the plastic liner provided the essential character of the sets. ... The court’s decision did not rely solely, or even hinge, on the indispensability of the water retaining function. The decision was substantially based on the importance of the other functions as well as the cost of the entire set. [119 F.3d at 971] [Emphasis added]
Other decisions in which the Court looked primarily to the role of the constituent material in relation to the use of the goods to determine essential character include Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995).
In HQ 957182, based upon GRI 3(b), we made an “essential character” analysis of each component of the microwavable articles and determined that the articles took their essential character and classification from the energy pack. In considering the roles of the textile pouch and the energy packs, we note that the primary purpose of the microwavable article is to provide warmth (i.e., that is the “indispensable function,” (Better Home Plastics, supra) of the article). The article is not intended as a means or mechanism for the transport of goods within the textile pouch; the sole purpose of the pouch is to house the energy pack. By contrast, as the energy pack is both receptacle and conduit of energy from the microwave oven, it is necessary for providing warmth. Thus, the textile pouch performs a secondary role to that of the energy pack. Therefore, we affirm that portion of HQ 957182 in which we concluded that the energy pack imparts the essential character to the microwavable articles. However, for the reasons set out below, we do not believe that they can be classified as “paraffin wax” of heading 2712, HTSUS.
An “Article” or “Good” Cannot be Classified in a Provision for “Materials”
The energy packs are mixtures of several different materials, including paraffin wax, water or sand, and an emulsifying agent. In HQ 957182, we classified the energy packs as paraffin wax of heading 2712, HTSUS, which in pertinent part provides for “(p)etroleum 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.” The heading text does not provide for articles of wax. Paraffin wax is “a hydrocarbon wax extracted from certain distillates of petroleum oils, or of oils obtained from shale or other bituminous minerals” (EN at page 230). Stated more generally, paraffin wax is a material obtained from certain minerals. By its terms, a heading providing for such a material does not appear to describe an article composed of that material. As the energy pack must be regarded as an article or good, heading 2712, HTSUS, does not appear to cover the merchandise.
In this regard, GRI 2(b) specifically addresses the classification of mixtures or combinations:
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. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. (Emphasis added).
As reflected in ENs X, XI, and XII to GRI 2(b), the effect of this rule is to expand the scope of a reference to a material or substance to include mixtures or combinations of these materials with other materials. It expands the scope of a heading providing for goods of a given material, which are mixed with other materials, to include goods only partially composed of that material. Notably, however, it does not expand the scope of a heading providing only for a material to include articles made of that named material. In HQ 957182, we mistakenly classified a good in a heading providing for a material.
The Articles are Goods of Heading 3824 by Application of GRI 1
Heading 3824, HTSUS, provides in part for “chemical products and preparations of the chemical or allied industries.” By its terms, it is a residual category that is broad enough to cover mixtures that are put up in a way that renders them fit for a particular application.
The EN to heading 3824, HTSUS, states at page 581 that “(t)he chemical or other preparations are either mixtures (of which emulsions and dispersions are special forms) or occasionally solutions” (Emphasis added). Therefore, according to the EN, an emulsion is a mixture of heading 3824, HTSUS.
The McGraw-Hill Encyclopedia of Science & Technology, 6th Edition, defines an “emulsion” as “[a] dispersion of one liquid in a second immiscible liquid.” Further, “[a] stable emulsion consisting of two pure liquids cannot be prepared; to achieve stability, a third component, an emulsifying agent, must be present. Generally the introduction of an emulsifying agent will lower the interfacial tension of the two phases” (vol. 6, p. 309).
As stated above, the energy pack of the microwavable body pads/back warmers and comfort wraps consists of an off-white polyurethane sheet soaked with a milky solution. The solution is a chemical mixture composed of paraffin wax (a hydrocarbon mixture), water, a surfactant and an antibacterial agent. The surfactant changes the surface tension of the wax and water, and allows them to mix, forming a milky solution / emulsion. According to the ENs, “emulsions” are “mixtures.” The chemical mixture here is specially formulated to provide a heat source for the article. Therefore, it is more than a mere chemical mixture; it is a “chemical preparation,” provided for in heading 3824, HTSUS.
The energy pack of the pocket warmer contains paraffin wax, silica sand (silicon dioxide, chemical formula SiO2 (Webster’s New World Dictionary of the American Language, College Edition)), and a non-toxic coloring agent. This chemical mixture of organic and inorganic chemicals is specially formulated to provide a heat source for the article. Therefore, it is more than a mere chemical mixture; it is a “chemical preparation,” provided for in heading 3824, HTSUS.
Based on the available information, we are only able to determine classification to the six digit level. However, if the emulsion contains five percent or more of an aromatic substance, it will be classified in subheading 3824.90.28, HTSUS. If it contains less than five percent, it will be classified in subheading 3824.90.45, HTSUS.
HOLDING:
Microwavable articles imported together with the energy packs are classifiable in subheading 3824.90, HTSUS, the provision for “prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included: Other.”
HQ 957182 is modified as set forth in this ruling.
Sincerely,
John Durant, Director
Commercial Rulings Division