OT:RR:CTF:CPM H283055 RGR
Ms. Mary Kastner
President
PMK International LLC
1107 SW Grady Way
Bldg B, Ste 120
Renton, WA 98057
RE: Revocation of NY N259445; Tariff classification of gel pack vest and cooler bag from Vietnam
Dear Ms. Kastner:
This is to inform you that U.S. Customs & Border Protection (“CBP”) has reconsidered
New York (“NY”) Ruling Letter N259445, dated December 17, 2014, regarding the classification of a gel pack vest set, consisting of a wearable hot and cold therapy delivery system in the form of a gel pack, a reusable insulated cooler bag, and a cardigan vest (hereinafter, “wearable thermal therapy system”), under the Harmonized Tariff Schedule of the United States (“HTSUS”). The gel pack, reusable insulated cooler bag, and cardigan vest were classified separately because we had determined that the merchandise was not a set for purposes of General Rule of Interpretation (“GRI”) 3(b). Accordingly, the gel pack was classified separately under subheading 3824.90.9290, HTSUS, which provides 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: Other: Other: Other: Other: Other: Other.” The reusable insulated cooler bag was classified separately under subheading 4202.92.0807, HTSUS, which provides for “. . . insulated food or beverage bags . . . : Other: With outer surface of sheeting of plastic or of textile materials: Insulated food or beverage bags: Other: Of man-made fibers.” The cardigan vest was classified separately under subheading 6110.30.3059, HTSUS, which provides for “sweaters, pullovers, sweatshirts waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other: Other: Women’s or girls’: Other.” We have determined that NY N259445 is in error. Therefore, this ruling revokes NY N259445.
Pursuant to 19 U.S.C. § 1625(c)(1), a notice was published in the Customs Bulletin, Volume 51, No. 29, on July 19, 2017, proposing to revoke NY N259445, and any treatment accorded to substantially identical transactions. One comment was received in response to this notice, and the arguments made therein were considered in this office’s analysis below.
FACTS:
In NY N259445, we described the merchandise as three separate articles packaged together, which includes a gel pack, a reusable insulated cooler bag, and a cardigan vest.
The gel pack is composed of water (65%), glycerol (20%), and polyacrylamide (15%) contained in a textile cover made of polyester, nylon, and spandex. The gel pack is nearly the length of the vest and shaped like a capital letter “I” to insert into the lower and upper back and spine portions of the vest. The bottom of the “I” shape covers the lumbar portion of the back. The vertical portion of the gel pack is approximately four inches wide. The top horizontal portion of the gel pack covers only the bottom of the cervical spine and a portion of the trapezoid muscles. The gel pack can be placed in a microwave, boiling water, or freezer and then inserted into the mesh lining of the vest where it is attached with hook and loop fasteners. According to the importer, the cost of the gel pack is over $5 and it weighs 16 ounces.
The reusable cooler bag is constructed of nonwoven polypropylene textile fabric. It provides storage, protection, portability, and organization for its contents. It has an interior storage compartment lined with aluminum foil that is laminated over a layer of foam. The bag has a zipper closure and a top carrying handle. It measures approximately 8” in width, 5” in height, and 6” in depth. The term “Dr.Soothe” and a logo is printed on the front of the bag.
The unisex cut-and-sewn sleeveless cardigan vest is made of approximately 80% polyester and 20% spandex. It is a zippered garment with a neck tightening cord and elasticized back. It features a “perfect fit” to maximize compression of the gel pack against the user’s back. The netted compartment for the gel pack is not visible while wearing the silver/charcoal colored two-tone vest, and appears as a lining to the vest. The vest has the term “backrelieve” printed on the back of the neck collar. The website contains a size guide for the vest. According to the importer, the cost of the vest is over $10 and it weighs 10 ounces.
ISSUE:
Whether the merchandise is classified as a set for tariff purposes, or separately under each component’s individual subheadings, in heading 3824, HTSUS, for the gel pack as “chemical products and preparations of the chemical or allied industries,” in heading 4202, HTSUS, for the insulated cooler bag as “insulated food and beverage bags,” or in heading 6110, HTSUS, for the cardigan vest as women’s or girls’ “sweaters, pullovers, sweatshirts waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers.”
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (“GRI”). 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, the remaining GRIs may then be applied in order.
GRI 3(b)-(c) provide as follows:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
…
(b) Mixtures, composite goods consisting of different materials or made up of
different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall classified under the heading which occurs last in numerical order among those which equally merit consideration.
The HTSUS headings under consideration are as follows:
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:
3824.90 Other
3824.90.92 Other
3824.90.9290 Other
***
4202 Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper:
4202.92 With outer surface of sheeting of plastic or of textile materials:
4202.92.08 Insulated food or beverage bags:
With outer surface of textile materials:
Other
4202.92.0807 Of man-made fibers (670)
***
6110 Sweaters, pullovers, sweatshirts, waistcoasts (vests) and similar articles, knitted or crocheted:
6110.30 Of man-made fibers:
Other:
Other:
6110.30.30 Other:
6110.30.3059 Women’s or girls’:
Other (639)
***
The merchandise classified in NY N259445 consists of individual articles that are, prima facie, classifiable in different headings and packaged together for retail sale. There is no dispute that heading 6110, HTSUS, describes the cardigan vest in NY N258445. Similarly, there is no dispute that heading 3824, HTSUS, describes the gel pack, and that heading 4202, HTSUS, describes the insulated cooler bag in NY N259445. Consequently, because the individual articles are, prima facie, classifiable in separate headings, consideration is given to classification pursuant to GRI 3.
In understanding the language of the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-90, 54 Fed. Reg. 35127 (Aug. 23, 1989).
EN to GRI 3(b) states, in pertinent part:
(VII) In all these cases the goods are to be classified as if they consisted of the material or
component which gives them their essential character, insofar as this criteria is
applicable.
(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
***
(X) For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:
consist of at least two different articles which are, prima facie, classifiable in different headings. . .
consist of products or articles put up together to meet a particular need or carry out a specific activity; and
are put up in a manner suitable for sale directly to users without repacking. . .
***
The cardigan vest, gel pack, and insulated cooler bag in NY N259445 are put up together for sale and are not repackaged after importation. Accordingly, they are suitable for sale directly to users without repacking. Together, the components are put up together to meet a particular need or carry out a specific activity. Specifically, all three items are put up together for the common purpose of providing thermal therapy through the interaction of the cardigan vest, gel pack, and insulated cooler bag. The cardigan vest is required in order to reap the benefits of the wearable thermal therapy system because the gel pack cannot be used without it unless the user were to lie on the gel pack or tape it to his or her back. Thus, the wearable thermal therapy system would not perform as efficiently if the cardigan vest and gel pack were not used together.
Whether a container such as the insulated cooler bag contributes to a set meeting a particular need or carrying out a specific activity, or whether it thwarts the set, causing the articles to be classified separately and individually, was addressed by the Court of International Trade (“CIT”) in Estee Lauder, Inc. v. United States, 815 F. Supp. 2d 1287, 1293 (Ct. Intl' Trade 2012). There, the CIT considered a cosmetics kit which contained 12-15 different cosmetics, cosmetic brushes and other related items, which were assembled into a zippered carrying case. In addressing the case itself, the court said, “the fact that the set is imported in a container that could be separately classifiable does not prevent the classification of the set as such.” Id. at 1297. This analysis is applicable in the instant matter as regards the insulated cooler bag.
Here, the insulated cooler bag is akin to the case discussed in Estee Lauder. This is because a relationship exists between the gel pack, cardigan vest and insulated cooler bag in which the gel pack and vest are stored. The dimensions of the insulated cooler bag are such that it is designed to hold the gel pack and cardigan vest together when they are put away for storage after cooling or heating the gel pack, or when the articles are not in use. The insulated cooler bag contributes to the wearable thermal therapy system because it is suitable for storage, protection, and transportation of the set components under normal use. Therefore, together, the insulated cooler bag, when used with the gel pack and cardigan vest, meets the particular need or specific activity of providing thermal therapy to the neck, lower back and shoulders while up and about. See Estee Lauder, Inc. v. United States, supra, at 1297 (“Because the...cosmetic case facilitates the transportation, storage and use of the cosmetics and other components contained within and for which it was designed, marketed and sold, it helps carry out the specific activity of applying make-up together with its contents”).
Thus, where the subject merchandise consists of at least two different articles which are, prima facie, classifiable in different headings; articles put up together to meet the particular need of providing users with wearable thermal therapy; and articles put up in a manner suitable for sale directly to users without repacking, we find that the subject merchandise meets the three requirements found in EN (X) to GRI 3(b) and is a “set” for tariff purposes. CBP must next determine which component imparts the essential character of the set for classification purposes.
There have been several court cases on “essential character” for purposes of classification under GRI 3(b). See Conair Corp. v. United States, 29 C.I.T. 888 (2005); Structural Industries v. United States, 360 F. Supp. 2d 1330, 1337-1338 (Ct. Int’l Trade 2005); and Home Depot USA v. United States, 427 F. Supp. 2d 1278, 1295-1356 (Ct. Int’l Trade 2006), aff’d 491 F. 3d 1334 (Fed. Cir. 2007). “[E]ssential character is that which is indispensable to the structure, core or condition of the article, i.e., what it is.” Home Depot USA, Inc. v. United States, 427 F. Supp. 2d at 1293 (quoting A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 383 (1971)). In particular, in Home Depot USA, Inc. v. United States, the court stated "[a]n essential character inquiry requires a fact intensive analysis." 427 F. Supp. 2d 1278, 1284 (Ct. Int'l Trade 2006). In that case, the court examined lighting fixtures and classified them according to glass components that served both decorative and functional purposes. Home Depot USA, Inc., 427 F. Supp. 2d at 1295.
We have carefully reviewed each component of the wearable thermal therapy system in order to determine which component imparts the essential character for classification purposes. The EN (VIII) to GRI 3(b) is instructive, stating that the factors which determine essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. Here, as the insulated cooler bag does not provide the primary function of the article as a whole in delivering wearable thermal therapy and merely stores the other components when not in use, this component does not impart the essential character of the set as a whole.
Next, we must determine whether the essential character is imparted by the cardigan vest or the gel pack. In Headquarters Ruling Letter (“HQ”) 966262, dated May 29, 2003, we classified a heated head therapy wrap consisting of a terry head cover or hood of knit 100% polyester terry fabric and plastic covered gel packs that can be heated in a microwave and placed inside specially shaped pockets in the terry cloth as headgear of heading 6505, HTSUS. We did so because the headgear portion of the article kept the gel packs in place. The unique shape of the fabric component was paramount in the functioning of the articles. See also HQ 964851, dated April 18, 2001 (classifying a plastic eye mask filled with chemical mixtures that can be heated or cooled prior to use, with the mask’s flexible plastic shell conforming to the wearer’s face to keep the article over his or her eyes, as an article of plastic of heading 3924, HTSUS, where plastic shell component imparted essential character); HQ 964877, dated May 17, 2001 (classifying an eye patch consisting of a vinyl plastic eye patch filled with solution consisting of 58% propylene glycol, 41.98% distilled water and 0.02% dyeing material that can be heated or chilled as an article of plastic of heading 3924, HTSUS, where plastic shell component imparted essential character); HQ 964878, dated May 17, 2001 (classifying four different styles of vinyl plastic eye masks and one vinyl plastic head compress designed to be heated or cooled and worn over the eyes or the forehead and temple as plastic articles of heading 3924, HTSUS, where plastic shell component imparted essential character); HQ 963725, dated May 17, 2001 (classifying a vinyl plastic eye mask filled with 59.8% propylene glycol, 40% distilled water and 0.02% color pigment that is intended to be chilled and placed over the user's eyes as articles of plastic of heading 3924, HTSUS, where plastic shell imparted essential character); and HQ 963852, dated May 17, 2001 (classifying one facial mask consisting of a vinyl plastic facial mask filled with water, 0.3% Poly Aery/Sodion, 0.5% salt, 0.2% 2-Phenoxyaethanol and 0.05% food color, and one eye mask consisting of a vinyl plastic mask filled with a 60% glycerin and 40% distilled water mixture as articles of plastic of heading 3924, HTSUS, where plastic shell component imparted essential character).
As in the eye mask cases and the heated head therapy wrap in HQ 966262, the essential character of the wearable thermal therapy system is imparted by the portion of the article that maintains the recognizable shape, making it usable for its intended purpose on one distinct portion of the body, i.e., providing thermal therapy relief to the user’s back. The subject merchandise has a distinct shape imparted by the cardigan vest and does not cease to be classifiable as a garment just because it is worn with another article, such as a gel pack. Further, in order for the user to receive back pain thermal therapy relief while using the product, the gel pack must be placed inside the back pouch of the vest. Without the cardigan vest, the gel pack could not be secured in the appropriate position for providing thermal therapy to the back and shoulders while the user is up and about. Moreover, the cardigan vest also can be worn without the gel pack and provides greater surface area and visual appeal to the merchandise. It is also the component responsible for a considerably greater amount of the value of the merchandise. Furthermore, the vest imparts the BackRelieve system with the other characteristics necessary for wearable thermal therapy. For instance, due to the “adjustable neckline control” and the “built in lumbar tension system,” the BackRelieve allows for “full compression control, ensuring consistent delivery of thermal therapy to all of your problem areas.” Drsoothe.com (last visited September 6, 2017). Moreover, the website states that the BackRelieve is “fashioned from the latest in athletic fabrics. Enhanced by breathability and wicking, the user can wear the BackRelieve without the worry of sweating or overheating.” Id. Lastly, the website states that the “antimicrobial technology” of the BackRelieve keeps it “free of odor-causing bacteria, fungus, mold and mildew—keeping users fresh between launderings.” Id. The compression needed for consistent delivery of the thermal therapy, the breathability, wicking, and antimicrobial properties of the fabric of the vest, and its ability to be laundered are all features of the vest portion of the merchandise. Without the features of the vest, the gel pack’s thermal properties would not be evenly distributed, the entire garment would not be sized properly, the user would sweat or feel wet from the gel pack, and the entire product would mildew. The vest is therefore indispensable to this wearable thermal therapy system. See Home Depot, supra.
Moreover, as the gel pack is hidden and of smaller dimensions than the vest, the vest contributes the most surface area, bulk and twice the value to the good as well as the only component to create visual appeal. Accordingly, pursuant to GRI 3(b), we find that the wearable thermal therapy system is classified according to the essential character of the set, imparted by the cardigan vest, in subheading 6110.30.3059, HTSUS, where the vest component is both functional and appealing as wearable thermal therapy. See Home Depot USA, Inc., 427 F. Supp. 2d at 1296 (glass component of a light fixture imparted the essential character where “both the glass and metal contribute to decorative appearance and are part of the structure” but “the glass further functions to direct and soften light through diffusion, to protect the lamp, and to shield the lamp from view”) (internal quotation marks omitted).
In the alternative, pursuant to GRI 3(c), where no single component of a set imparts the essential character, the merchandise is to be classified in the heading which occurs last in numerical order among those which equally merit consideration in determining their classification. In regards to the wearable thermal therapy system, the tariff heading for the cardigan vest, subheading 6110.30.3059, HTSUS, appears last in numerical order among the competing headings which equally merit consideration. Thus, under a GRI 3(c) analysis, we also find that the proper classification for the wearable thermal therapy system is subheading 6110.30.3059, HTSUS, which covers “Sweaters, pullovers, sweatshirts waistcoats (vests) and similar articles, knitted or crocheted (con): Of man-made fibers: Other: Other: Other: Women’s or girls’: Other.”
The commenter who submitted comments in response to the notice of proposed revocation of NY N259445 argues that the essential character is imparted by the gel pack rather than by the cardigan vest. Specifically, the commenter argues that the gel pack plays the primary therapeutic role of the wearable thermal therapy system, as purchasers will buy the wearable thermal therapy system expressly because of its relief properties. However, the commenter downplays the centrality of the vest’s purpose to the wearable thermal therapy system and misconstrues CBP’s analysis in asserting that it hinges on the conclusion that the article that retains its shape automatically imparts the essential character. CBP’s position is not that the vest imparts the essential character because it retains its shape but that without the shape, structure, compression, breathability, and other characteristics provided by the vest, the item would not be suited for its intended purpose of providing thermal therapy relief to the user’s back while up and about. As explained above, this is in line with CBP’s past rulings.
HOLDING:
Pursuant to GRIs 1 and 3(b), the gel pack vest set consisting of a wearable thermal therapy system is classified under heading 6110, HTSUS, and specifically provided for under subheading 6110.30.3059, HTSUS, as “Sweaters, pullovers, sweatshirts waistcoats (vests) and similar articles, knitted or crocheted (con): Of man-made fibers: Oher: Other: Other: Other: Other: Women’s or girls’: Other.” The general, column one, rate of duty is 32% ad valorem.
EFFECT ON OTHER RULINGS:
NY N259445, dated December 17, 2014, is revoked.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division