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HQ 955228





January 13, 1994

CLA-2 CO:R:C:M 955228 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.99.90

Stephen J. Leahy, Esq.
Leahy & Ward
Attorneys at Law
63 Commercial Wharf
Boston, Massachusetts 02110

RE: Insoles, heated; Footwear; Composite articles; Essential character; Ejusdem generis; Note 1(a) to chapter 85; HQ 955105

Dear Mr. Leahy:

This is in reference to your letter dated September 7, 1993, to the District Director of Customs in Boston, Massachusetts, on behalf of Hotronic U.S.A. Inc., concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of an insole with a built-in electric heating element, for a footwarmer. Your letter, together with the sample and descriptive literature, has been referred to this office for a response.

FACTS:

The merchandise is an insole with a heating element. It consists of a round heating element approximately 2-1/8 inches in diameter with an attached power cord measuring approximately 26 inches in length, with a fitting at the end opposite the heating element. The heating element is imbedded and permanently attached to a footwear insole made of rubber or plastic.

The heating element is said to consist of an element disk and a microchip. The element disk is paper thin and constructed of multiple layers of copper, fiberglass and resin. The element serves to disburse the heat generated by the microchip attached underneath the layers.

The microchip is located in the center of the element. The temperature of the microchip is determined by the setting selected on the battery pack. You suggest that if the heating element were imported separately, it would be classifiable under subheading 8516.80.80, HTSUS, which provides for electric heating resistors, other, with duty at the rate of 3.9% ad valorem.

The insole is approximately 1/8 inch thick and is in the shape of the sole of a foot. It is made of rubber or plastic and is marked with lines to allow the user to trim the insole to size. You suggest that if the insole were imported separately, it would be classifiable under subheading 6406.99.30, HTSUS, which provides for parts of footwear; removable insoles, and similar articles, other, of other materials, of rubber or plastics. The applicable rate of duty for this provision is 5.3% ad valorem.

You take the position that the importation qualifies as a composite good pursuant to GRI 3(b), HTSUS, in that it consists of two components classifiable under different headings. Further, you assert that the heating element imparts the essential character to the merchandise which requires that it be classified under subheading 8516.80.80, HTSUS.

No information is provided in this ruling request concerning the battery pack. However, in HQ 955105, issued to you on December 10, 1993, in response to another ruling request dated September 7, 1993, we determined that a rechargeable nickel- cadmium storage battery and a battery charger, designed to power a footwarmer, were classifiable under subheading 8507.30.00, HTSUS, the provision for nickel-cadmium storage batteries.

ISSUE:

Whether, for tariff purposes, the heated insole is considered an electric heating resistor, or removable insoles and similar articles.

What component imparts the essential character to the heated insole?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

Note 1(a) to chapter 85, HTSUS, reads as follows:

1. This chapter does not cover:

(a) 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[.]

You assert that Note 1(a) to chapter 85, HTSUS, is not dispositive, in that the insole with the heating element is not ejusdem generis with the articles listed in the note. Further the insole is not an article to be worn on or about the person, but at best, a part of an article, and therefore is not proscribed from classification in chapter 85, HTSUS.

The doctrine of ejusdem generis is that where particular words of description are followed by general terms, the latter refer only to things of a like class with those particularly described.

It is our view that the exclusionary language in heading 1(a) to chapter 85, HTSUS, precludes classification of the heated insole therein. The doctrine of ejusdem generis has no application here. Clearly, the heated insole is described within that portion of note 1(a) to chapter 85, HTSUS, which refers to "other electrically warmed articles worn on or about the person." Further, we consider the heated insole to be an "article" in and of itself rather than "part of an article."

We see no reason to believe the exclusion does not apply because a necessary but auxiliary element (the battery pack) is missing from the article as imported, since the import will have the essential element, namely the heating element.

Inasmuch as the heated insole is a composite good [insole plus heating element], its classification is governed by GRI 3(b), HTSUS, which reads, as follows:

3. 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 . . . 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.

The heated insole is prima facie classifiable under subheading 6406.99.30, HTSUS, which provides for removable insoles and similar articles, other, of other materials, of rubber or plastics, or under subheading 6406.99.90, HTSUS, which provides for removable insoles and similar articles, of other materials, other.

The Harmonized Commodity Description and Coding System Explanatory Notes to the HTSUS (EN), although not dispositive should be looked to for the proper interpretation of the HTSUS. See, 54 FR 35128 (August 23, 1989).

Composite goods are classifiable as if they consisted of the component which gives them their essential character. EN VIII to GRI 3(b), at page 4, reads as follows:

(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.

It is our opinion that the essential character of the heated insole is derived from the metal in the heating element (which is what actually heats up) and perhaps, the metal in the wire which is the conductor of the electricity to heat the insole.

In view of the foregoing, it is our position that the heated insole is classifiable under subheading 6406.99.90, HTSUS.

HOLDING:

The metal portion of the heating element imparts the essential character to the heated insole.

The insole with a built-in electric heating element is dutiable at the rate of 18% ad valorem under subheading 6406.99.90, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division

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