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HQ 963001




JULY 22, 1999

CLA-2 RR:CR:GC 963001 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8543.89.96

Mr. Art Gurevich
Thermosoft International Corporation
800 E. Northwest Highway, Suite 700
Palatine, Il 60067

RE: NY D84863 Modified; Thermo Throw, Thermo SoftPad; Personal Heaters for Motor Vehicles

Dear Mr. Gurevich:

In your letter, dated April 19, 1999, you request reconsideration of NY D84863, dated December 17, 1998, a ruling in which the Director of Customs National Commodity Specialist Division, New York, classified the Thermo Throw and the Thermo SoftPad, automotive personal heaters, under a provision in the Harmonized Tariff Schedule of the United States (HTSUS), for other furnishing articles, knitted or crocheted.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), 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 of NY D84863 was published on June 16, 1999, in the Customs Bulletin, Volume 33, Number 24. No comments were received in response to that notice. NY D84863 also addressed the partial duty exemption under subheading 9802.00.80, HTSUS, for imported articles that are assembled abroad in whole or in part of fabricated components, products of the United States. This issue is not a part of this modification.

FACTS:

The articles in NY D84863, the 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.

The provisions under consideration are as follows:

6304 Other furnishing articles, excluding those of heading 9404:

Other:

6304.91.00 Knitted or crocheted

8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in [Chapter 85]...:

Other machines and apparatus:

Other:

8543.89.96 Other

ISSUE:

Whether electrically heated seat pads and throws for motor vehicles are electrical articles of heading 8543.

LAW AND ANALYSIS:

Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

Goods that consist of more than one material or substance are prima facie classifiable in two or more headings, and shall be classified according to the principles of GRI 3. GRI 3(b), HTSUS, states, in part, that composite goods consisting of different materials or made up of different components shall be classified as if consisting of that material or component which gives the good its essential character.

The Thermo Throw and Thermo SoftPad are composite goods that are prima facie classifiable in heading 6304, as furnishing articles, in heading 8536 as switches and plugs, and in heading 8543, as electrical apparatus not covered more specifically by another heading in the HTSUS. The latter heading includes, among other things, articles that consist of an assembly of goods or parts operating wholly electrically. Goods of heading 8543 may incorporate mechanical features, provided those features are subsidiary to the electrical function the apparatus performs. Activation of the ON/OFF switch and setting the temperature manually involves, at least in part, a mechanical function that is subsidiary to the function of producing heat electrically by means of the metallic grid and the electrical cord. Headings 6304, 8536 and 8543 each describe part only of the Thermo Throw and the Thermo SoftPad. Under GRI 3(a), these headings are to be regarded as equally specific with respect to the goods. GRI 3(b) requires that these articles be classified according to their essential character.

The factor or factor which determines essential character varies with the good. The role of a constituent material or component in relation to the use of the good is often a useful indicator of a good’s essential character. In this case, the textile and/or foam cover provides a comfortable base on which to sit, and protects the occupant from being burned by direct
contact with the metallic wire grid. The ON/OFF temperature control switch sets the requisite temperature and the cigarette lighter adapter or plug completes the electrical connection. All contribute significantly to the overall function of the heating pads. However, it is our opinion that the criss-cross grid is the medium through which heat is produced, and this is the purpose for which the heating pads exist. We conclude that the criss-cross grid constitutes an assembly of goods or parts that operate wholly electrically, and that this assembly, described by heading 8543, imparts the essential character to the Thermo Throw and the Thermo SoftPad. The heating pads in issue must therefore be classified as if they were seat pads and throws for motor vehicles that contain apparatus for producing heat electrically.

Chapter 85, Note 1(a), HTSUS, excludes, among other things, electrically warmed blankets, bed pads, foot-muffs or the like. In our opinion, electrically warmed blankets, bed pads and foot-muffs are designed to be placed on or worn over the person while the Thermo Throw and the Thermo SoftPad are designed to be sat upon. Also, the named articles are designed for domestic, household use, while the Thermo Throw and Thermo SoftPad are designed exclusively for motor vehicle use. We conclude that the Thermo Throw and Thermo SoftPad and the articles enumerated in Note 1(a) are not of like kind, and the former are not subject to exclusionary Note 1(a).

HOLDING:

Under the authority of GRI 3(b), the electrically heated seat pads Thermo Throw and Thermo SoftPad are provided for in heading 8543. They are classifiable in subheading 8543.89.96, HTSUS. By function and design, the Thermo Throw and Thermo SoftPad are unique articles of commerce. For this reason, the principles of this decision are of limited applicability, and intended to apply to these articles specifically.

NY D84863, dated December 17, 1998, is modified accordingly. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director
Commercial Rulings Division

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