CLA 2 RR:CR:TE 962741 SS
Mr. Dave Wickland
Pacific Trade Services Incorporated
18808 142nd Avenue NE
Building B, Suite 3A/B
Woodinville, WA 98072
RE: Classification of Magnetic Therapy Articles; Removable Insole; GRI 1; Heading 6406, HTSUSA; GRI 3(b); Essential Character Imparted by the Magnetic Material
Dear Mr. Wickland:
This is in response to the request from Fritz Companies, Inc., dated March 3, 1999, on your behalf, concerning the classification of two “magnetic therapy articles” under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample of a magnet therapy removable insole was submitted with your request. Please be advised that this ruling letter only concerns the removable insole. The elbow support will be addressed in a separate ruling letter.
FACTS:
The submitted sample is a three-ply removable insole for use in a shoe. The middle ply is comprised of a magnetic material and is sandwiched between two textile piles. The importer describes the merchandise as a “magnetic therapy” insole and states that the insole is placed on the foot for therapeutic purposes. No evidence was introduced which corroborated the therapeutic properties of the removable insole.
ISSUE:
I. What is the classification of the removable insole?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.
Removable insoles are eo nomine provided for in heading 6406, HTSUSA. That heading provides for “[p]arts of footwear (including uppers whether or not attached to soles other than outer soles); removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof.” Additionally, Explanatory Note (I)(B) to heading 6406, HTSUSA, states that the heading includes removable insoles of any material except asbestos. Accordingly we find that the subject merchandise is classifiable under heading 6406, HTSUSA, pursuant to GRI 1.
Next we must determine classification of the removable insoles at the subheading level. Subheadings 6406.99.15 through 6406.99.90, HTSUSA, cover removable insoles depending on the material from which they are made. The instant insoles are composed of more than one material. Thus, the insoles are prima facie classifiable under subheading 6406.99.15, HTSUSA, if of textile materials, or under 6406.99.90, HTSUSA, if of other materials.
GRI 6 states as follows:
6. For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
By virtue of GRI 6, HTSUSA, GRI 3(b), HTSUSA, is relevant here. GRI 3(b) states that goods which are prima facie classifiable under two or more headings and consist of different materials or are made of different components shall be classified as if they consisted of the material or component which give 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 VII to GRI 3.
In Headquarters Ruling Letter (HQ) 083834, dated May 2, 1989, Customs examined a “Bama Odor Stop” removable insole designed to be used for odor absorption. The insole consisted of textile layers and a layer of fabric which had been impregnated with activated carbon. Customs found that the essential character of the insole was imparted by the carbon material because it was the activated carbon that absorbed odors, the carbon material made up 50 percent by weight of the article, the insole did not provide extra padding and the insole was essentially for odor absorption. Accordingly, the insole was classified under heading 6406.99.9000, HTSUSA, which includes removable insoles of materials not otherwise specified. Also, in HQ 084576, dated July 27, 1989, Customs classified a removable insole that contained a layer of moss which purported to keep feet fresh, cool and comfortable under heading 6406.99.9000, HTSUSA. Customs reasoned that the moss layer imparted the essential character of the insole since the moss was the unique feature of the insole and provided the feature for which the insole would be purchased. For other rulings consistent with this position see HQ 083833, dated May 2, 1989; HQ 083832, dated May 31, 1989; HQ 084962, dated August 15, 1989; and HQ 951619, dated June 15, 1992.
Applying the above cited rulings to the instant matter, we find that the removable insole derives its essential character from the magnetic material. Our rationale for this position is that the magnetic material is the unique feature of the insole. The insole does not act as padding for the foot; the insole is worn for the alleged therapeutic purposes of the magnetic materials. This particular insole is purchased by a consumer specifically because it contains the magnetic material. Furthermore, the magnetic material provides the most bulk to the item. Accordingly, the subject insole is classifiable under subheading 6406.99.9000, HTSUSA, the provision which covers removable insoles of other materials.
HOLDING:
The removable insole at issue is properly classifiable in subheading 6406.99.9000, HTSUSA, which provides for “parts of footwear (including uppers whether or not attached to soles other than outer soles); removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof: Other: Of other materials: Other.” The general column one rate of duty is “Free”.
Sincerely,
John Durant, Director
Commercial Rulings Division