CLA-2 OT:RR:CTF:TCM H062211 RM
Mr. Art Gurevich
Thermostat International Corporation
800 E. Northwest Highway, Suite 700
Palatine, IL 60067
RE: Revocation of HQ 963001, dated July 22, 1999; Classification of Electrically-Heated Throws and Seat Pads for Automotive Use
Dear Mr. Gurevich:
This is in reference to Headquarters Ruling Letter (“HQ”) 963001, dated July 22, 1999, issued to you on behalf of Thermostat International Corporation. In that ruling, U.S. Customs and Border Protection (“CBP”) classified the “Thermo Throw” and the “Thermo Softpad,” electrically-heated throws and seat pads for automotive use, under heading 8543, Harmonized Tariff Schedule of the United States (“HTSUS”), as “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in [Chapter 85].” We have reviewed HQ 963001 and found it to be in error.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), 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 modification was published on July 10, 2009, in the Customs Bulletin, Volume 43, No. 27. One comment was received in response to this notice and is addressed in this ruling.
FACTS:
In HQ 963001, CBP described the merchandise as follows:
[T]he Thermo Throw and the Thermo SoftPad, are electric heating devices designed to be placed on the rear bench seat and the front seat of a motor vehicle, and to be plugged into the vehicle’s cigarette lighter outlet to warm the occupants. They consist of an outer cover of one or more layers of polyester knit pile fabric and, in the SoftPad, a layer of plastic foam. Between the fabric layers are narrow woven tapes that contain copper wire and/or carbon fibers forming a criss-cross grid connected to electric wires and a thermostat that attach to a power cord. On this cord is an ON/OFF temperature control switch and a cigarette lighter adapter or plug.
In that ruling, we considered these articles to be “composite goods,” classified by application of GRI 3(b).
ISSUE:
Whether the Thermo Throw and the Thermo SoftPad are classified under heading 8516, HTSUS, as electrothermic appliances of a kind used for domestic purposes, or under heading 8543, HTSUS, as electrical machines and apparatus, having individual functions, not specified or included elsewhere in Chapter 85, HTSUS.
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation ("GRIs"). GRI 1 provides, in part, that "for legal purposes, classification shall be determined according to terms of the headings 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, GRIs 2 through 6 may then be applied, in order.
The 2009 HTSUS provisions under consideration are as follows:
8516 Electric instantaneous or storage water heaters and immersion heaters; electric space heating apparatus and soil heating apparatus; electrothermic hairdressing apparatus (for example, hair dryers, hair curlers, curling tong heaters) and hand dryers; electric flatirons; other electrothermic appliances of a kind used for domestic purposes; electric heating resistors, other than those of heading 8545; parts thereof:
Other electro-thermic appliances:
8516.79.00 Other …
* * *
8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
Other machines and apparatus:
8543.89 Other: Other:
8543.89.96 Other …
Legal Note 1(a) to Chapter 85, HTSUS, states:
This chapter does not cover:
Electrically warmed blankets, bed pads, foot-muffs or the like; electrically warmed clothing, footwear or ear pads or other electrically warmed articles worn on or about the person[.]
The Additional U.S. Rules of Interpretation provide, in part:
In the absence of special language or context which otherwise requires:
(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use;
* * *
(c) a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for “parts” or “parts and accessories” shall not prevail over a specific provision for such part of accessory;
* * *
When interpreting and implementing the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) should be consulted. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to heading 8516, HTSUS, state, in relevant part:
(E) OTHER ELECTRO-THERMIC APPLIANCES OF A KIND USED FOR DOMESTIC PURPOSES
This group includes all electro-thermic machines and appliances provided they are normally used in the household. Others include:
* * *
(18) Bed warmers.
* * *
It is the position of CBP that Note 1(a) to Chapter 85, HTSUS, applies to electrically warmed articles of bedding and articles designed to be worn on or about the person. The automotive throws and pads at issue are not articles of bedding and are designed to be sat upon, not worn on or about the person. Accordingly, they are not excluded from classification in Chapter 85, HTSUS, by the Note.
In our proposed ruling, we stated that, based on the purpose for which the Thermo Throw and the Thermo SoftPad are used (i.e., to warm car seats), they are of the same kind of good as bed warmers and other such electrothermic appliances used in the household. See EN 85.16(E). As such, we found that they are entirely described by
heading 8516, HTSUS, at GRI 1. Commenter objects to that conclusion, and posits that a bed warmer is distinguishable from an automotive seat heater in that it warms the object on which it is placed but not the person laying on it. Moreover, he argues that because the seat heaters include cigarette lighter adapters, they are not of a kind used for domestic purposes.
Heading 8516, HTSUS, provides, in relevant part, for “[O]ther electrothermic appliances of a kind used for domestic purposes[.]” The heading is a use provision, governed by Additional U.S. Rule of Interpretation 1(a), HTSUS, cited above. CBP has previously defined the term “domestic” as “of or pertaining to the family or household.” See HQ 965861, dated January 7, 2003 (citing the Merriam-Webster Collegiate Dictionary, 10th ed., pg. 344 (1999)). Accordingly, goods of the heading must be the kind of electrically-heated good that is used in the household. However, while heading 8516, HTSUS, is a use provision, it is not an actual use provision. In Primal Lite, Inc. v. United States, 15 F. Supp 2d 915, 917 (Ct. Int’l Trade 1998), aff’d, 182 F.3d 1362 (Fed. Cir. 1999), the Court of International Trade explained that:
The use of the term ‘of a kind’ is nothing more than a statement of the traditional standard for classifying importation by their use, namely that it need not necessarily be the actual use of the importation but is the use of the kind of merchandise to which the importation belongs.
Thus, under Primal Lite, to be classified under heading 8516, HTSUS, the heater need not actually be used in the house, but must be the type of good that is used in the house – such as a bed warmer. After considering their characteristics and uses, we find that a car seat heater and a bed warmer are the same kind of good. Both provide warmth to the object upon which it is placed and, in turn, to the person sitting or laying on it. We also find that the type of connector/adapter that an article may have does not affect whether the article itself is a type of household good.
Finally, commenter submits that the goods cannot be classified under heading 8516, HTSUS, because Note 1(l) to Section XVI excludes accessories to motor vehicles, classified under Section XVII. We note that, as explained by the Court of Appeals for the Federal Circuit in Rollerblade, Inc., v. United States [“Rollerblade”], 116 F. Supp 2d 1247 (Ct. Int’l Trade 2000), aff’d, 282 F.3d. 1349, 1351 (Fed. Cir. 2002), an accessory “must be ‘of’ or ‘to’ the article … listed in the heading.” The goods at issue act directly on the car seats, but not on the motor vehicles themselves. Applying Rollerblade, we find that they are accessories to car seats, not accessories to motor vehicles, and, therefore, are not goods of Section XVII. Accordingly, Note 1(l) to Section XVI does not apply to these goods.
Heading 9401, HTSUS, which provides in part for “Seats”, including those used for motor vehicles, also provides for parts of seats, but not their accessories. Consequently, the heated throws and pads could not be classified in this heading as car seat accessories. Moreover, Additional U.S. Rule of Interpretation 1(c) directs that if a provision specifically provides for an accessory, it must be classified there and not as an “accessory.” Heading 8516, HTSUS, specifically provides for those goods.
Insofar as the Thermo Throw and the Thermo SoftPad are classified under heading 8516, HTSUS, they cannot be classified under heading 8543, HTSUS, by the terms of that heading, because they are “specified or included elsewhere in [Chapter 85].” CBP has consistently classified heating pads under subheading 8516.79, HTSUS. See, e.g., HQ 967454, dated January 10, 2005; HQ 087731, dated September 7, 1990; and NY R01528, dated March 16, 2005. As we are able to classify the merchandise at GRI 1, there is no need to consider classification using GRI 3.
HOLDING:
By application of GRI 1 and U.S. Additional Rule of Interpretation 1(a), the Thermo Throw and Thermo SoftPad are classified under heading 8516, HTSUS, specifically in subheading 8516.79.00, which provides in relevant part for: “[O]ther electrothermic appliances of a kind used for domestic purposes; … Other electro-thermic appliances: Other.” The column one, general rate of duty is 2.7 % ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at www.usits.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
HQ 963001, dated July 22, 1999, is hereby revoked. In accordance with 19 U.S.C. § 1625(c), this action will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division