CLA 2 RR:CR:TE 963460 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; Elbow Support; Composite Good; GRI 3(b); Dual Aspect; Functions as a Textile Article in the Ordinary Manner; Not Mere Medium for Magnets to Perform Intended Function; Essential Character Imparted by the Textile Component; Heading 5906, HTSUSA; Rubberized Textile Fabric; Heading 6307, HTSUSA; Other Made Up Textile Article
Dear Mr. Wickland:
This is in response to a request made by Fritz Companies, Inc. on behalf of your company, Pacific Trade Services Incorporated, dated March 3, 1999, concerning the classification of two “magnetic therapy articles” under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample of each of the “magnetic therapy articles” was submitted with the request. We have previously issued Headquarters Ruling Letter (HQ) 962741, dated November 2, 1999, which addressed the classification of the removable insole. Accordingly, this ruling only concerns the classification of the elbow support.
FACTS:
The submitted sample is an elbow support designed as a wrap to be placed around the elbow. The elbow support is made of foam rubber that is laminated on both the inner and outer surface with knit man-made textile fabric. There are two pads sewn onto the interior of the wrap and a rectangular shaped magnet is contained within each pad. The elbow support is fastened by strips of hook and loop material. The importer describes the merchandise as a “magnetic therapy” elbow support and states that the support is placed on the elbow for therapeutic purposes. No evidence was introduced which corroborated the therapeutic properties of the elbow support.
ISSUE:
I. What is the classification of the magnetic therapy elbow support?
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.
The magnetic therapy elbow support is comprised of an elbow support made of foam rubber laminated on both sides to textile fabric and two magnets sewn into the interior of the elbow support. A review of the HTSUSA indicates that there is no single heading which describes the article. Thus, the magnetic therapy elbow support is not classifiable pursuant to GRI 1.
GRI 2(b) states that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3. Since the magnetic therapy elbow support consists of both an elbow support made of foam rubber laminated on both sides to textile fabric and magnets, the article must be classified according to the principles of GRI 3.
GRI 3 describes a hierarchy of methods of classifying goods which fall under two or more headings. The first method of classification is provided in GRI 3(a), under which the heading which provides the most specific description is to be preferred to a heading which provides a more general description. However, when two or more headings each refer to a part of materials or substances contained in composite goods, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description than the other. In this case the magnet portion of the article is provided for under heading 8505, HTSUSA, while the fabric portion of the article is provided for in Chapter 40 or Chapter 63, HTSUSA, depending on whether the fabric is considered a rubber or a textile material. Since the magnetic therapy elbow support is a composite good and each of the headings under consideration only cover a part of the composite good, GRI 3(a) is not determinative of the classification of the article. In such circumstances, the GRI direct that the classification of such goods shall be determined by GRI 3(b) or (c).
GRI 3(b) provides that composite goods consisting of different materials or made up of different components are to be classified as if they consisted of the material or component which gives them their “essential character.” Explanatory Note VII to Rule 3(b). Thus, the question is whether the rubber and textile combination elbow support or the magnets gives the magnetic therapy elbow support its essential character. Essential character may be determined by the nature of the material, its bulk, quantity, weight, value or by the role of a material in relation to the use of the goods. Explanatory Note VIII to Rule 3(b).
The rubber and textile combination elbow support provides support to the elbow and limits the movement of the elbow. It gives the article its form and provides its means of performance. The effect of the magnets cannot be applied to the elbow of the wearer without the rubber and textile combination elbow support. It is the wearing of the rubber and textile combination elbow support that allows the magnets to function as intended. Without the rubber and textile combination elbow support, the magnets cannot be put to their intended use. On the other hand, it is the magnets that provide the source of the “magnetic therapy.” Thus, the article has a dual aspect: it functions as both an elbow support and as a magnetic therapy device.
The decision as to which component imparts the essential character to the article depends on an examination of the article and its dual aspect. In HQ 956845, dated December 22, 1994, Customs examined the classification of textile wristbands, headbands, hard-hat pads and vests with plastic polymer beads sewn inside which provided a cooling effect. All the articles were capable of functioning as a cooling mechanism. However, Customs stated that this did not mean that in all cases the cooling beads would impart the essential character. Where the article also functioned as a textile article in the ordinary manner, the cooling mechanism aspect of the article was not viewed as imparting the essential character. Where the textile article did not function in the ordinary manner, and thus appeared only to be providing a medium through which the cooling beads were able to perform their intended function, the beads were viewed as imparting the essential character.
By way of example, wristbands and headbands are made of soft and absorbent materials and their ordinary purpose is to absorb perspiration and keep it from the hands and eyes. However, the wristbands and headbands at issue in HQ 956845 were not made of such materials and it was clear that their purpose was not to act as an ordinary kind of wristband or headband. The function of the textile aspect of those articles was to provide a means by which the cooling beads could function. Their role as textile articles was limited to that purpose. Thus, the beads were viewed as imparting the essential character. In contrast, the vests in HQ 956845 were found to function as a textile article within the realm of what is ordinary for vests. The fact that the vest at issue provided a cooling feature did not render its basic function as a vest subordinate. Thus, the beads were not viewed as imparting the essential character to the vests.
Additionally, in HQ 957182, dated March 6, 1995, Customs again examined the dual aspect of “warmers” which consisted of a textile component that housed an “energy pack” which provided warmth. Customs stated that the energy packs were designed to provide warmth and the textile component provided the form and the means of performance. Customs found that the textile component did not function in the ordinary manner and only provided a medium through which the energy packs were able to perform their warming function. Accordingly, Customs found that the energy packs imparted the essential character to the articles. Thus, in examining a textile article with a dual aspect, the question is in most cases whether or not the textile component functions in the ordinary manner or whether it only provides a medium through which another component is able to perform its intended function.
Applying this rationale to the present case, we find that the magnetic therapy elbow support has a dual aspect: the magnets are alleged to provide pain relief and the rubber and textile combination component functions as an elbow support. Although the rubber and textile combination component does provides the means of performance for the magnets, it does not merely provide a medium through which the magnets are able to perform their intended function. The rubber and textile combination component functions as an elbow support in the ordinary manner. Accordingly, the rubber and textile component imparts the essential character to the article.
Finding that the rubber and textile combination component imparts the essential character to the article, we must determine whether the combination is considered a rubber or textile for classification purposes. Chapter 40, HTSUSA, covers rubber and articles thereof. The General EN to Chapter 40 states that the classification of rubber and textile combinations is essentially governed by Note 1(ij) to Section XI and Note 4 to Chapter 59, HTSUSA. Note (ij) to Section XI, the section that covers textile and textile articles, states that the section does not include knit fabrics laminated with rubber, or articles thereof, of Chapter 40, HTSUSA. However, not all knit fabrics laminated with rubber are “of,” or classifiable under, Chapter 40, HTSUSA; some are classifiable under Chapter 59, HTSUSA, a chapter within the textile section. Thus, the note must be read in conjunction with Note 4 to Chapter 59, HTSUSA. Note 4 to Chapter 59, HTSUSA, states that for the purposes of heading 5906, HTSUSA, which covers rubberized textile fabrics, the expression “rubberized textile fabrics” means:
(a) Textile fabrics impregnated, coated, covered or laminated with rubber:
(i) Weighing not more than 1,500 g/m2; or
(ii) Weighing more than 1,500 g/m2 and containing more than 50% by weight of textile material;
(b) Fabrics made from yarn, strip or the like, impregnated, coated, covered or sheathed with rubber, of heading 5604; and
(c) Fabrics composed of parallel textile yarns agglomerated with rubber, irrespective of their weight per square meter.
In reference to the scope of heading 5906, HTSUSA, Note 4 to Chapter 59 also explains that:
[t]his heading does not, however, apply to plates, sheets or strip of cellular rubber, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 40), or textile products of heading 5811.
It is Customs belief that the knit fabric is present for more than mere reinforcement. The textile fabric provides a protective cover for the rubber. The textile fabric gives the elbow support a different visual appearance and tactile quality, and enhances the marketability of the product. Accordingly, the elbow support is considered to be made of a “rubberized textile fabric” classifiable in heading 5906, HTSUSA. Since heading 5906, HTSUSA, is within the textile section of the HTSUSA, for classification purposes under the HTSUSA, articles made of this material would be considered to be articles of textiles.
Finding that the component which imparts the essential character to the article is considered a textile for classification purposes, we review the textile provisions of Section XI. Heading 6307, HTSUSA, provides for, among other things, other made up articles. The EN to heading 6307, HTSUSA, state:
This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.
It includes, in particular:
* * *
(27) Support articles of the kind referred to in Note 1(b) to Chapter 90 for joints (e.g., knees, ankles, elbows or wrists) or muscles (e.g., thigh muscles), other than those falling in other headings of Section XI.
The subject elbow support is the type of merchandise specifically provided for in the EN to heading 6307, HTSUSA. As this item is a made up textile article not more specifically provided for elsewhere in the tariff, it is properly classifiable in heading 6307, HTSUSA. See also, HQ 952568, dated January 28, 1993 and HQ 951406, dated July 13, 1992, in which knee and elbow supports similar to the subject merchandise were classified as other made up articles in heading 6307, HTSUSA. Furthermore, this ruling is also consistent with HQ 958791, dated May 13, 1996, in which Customs classified a similar knit elbow/knee support which had ten magnets sewn into the support to help eliminate pain in the joint regions under heading 6307, HTSUSA.
However, to the extent that HQ 958791 classified the merchandise pursuant to GRI 1 without performing an essential character analysis pursuant to GRI 3(b), the ruling is being considered for modification.
HOLDING:
The elbow support at issue is properly classifiable in subheading 6307.90.9989, HTSUSA, which provides for other made up articles, including dress patterns: other: other: other: other. The applicable rate of duty is 7 percent ad valorem and there is no designated textile restraint category.
Sincerely,
John Durant, Director
Commercial Rulings Division