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HQ 964054




March 2, 2001

CLA-2 RR:CR:GC 964054 nel

CATEGORY: CLASSIFICATION

TARIFF NO.: 3924.90.5500

Ms. Teresa A. Gleason
Baker & McKenzie
815 Connecticut Avenue, N.W.
Washington, D.C. 20006-4078

RE: Microcore® energy packs; heating and cooling pads

Dear Ms. Gleason:

This is in reply to your letter of January 11, 2000, to the Customs National Commodity Specialist Division, New York, on behalf of R.G. Barry Corporation, requesting the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of the following: (1) Microcore® energy packs, and (2) Microcore® energy packs imported with textile covers. Three samples of the Microcore® energy packs, two with textile covers, were submitted. Your letter was referred to this office for reply. In preparing this ruling, consideration was also given to your supplemental submissions of February 15 and May 3, 2000. We regret the delay.

Your requested ruling on the country of origin marking will be issued separately.

FACTS:

The merchandise is identified as Microcore® energy packs and heating or cooling pads composed of the energy pack and a textile cover. The energy pack is described as consisting of water and polyurethane foam sealed in a watertight polyurethane film bag. Customs Laboratory report #SV20010072 dated January 26, 2001, confirmed that the contents of the Microcore® energy pack are water and polyurethane plastic foam.

It is claimed that the energy pack, after heating in a microwave, retains and radiates heat, which provides warm comfort to various areas of the body, such as the neck, the back, and the elbow or knee joint. Alternatively, it is claimed that the energy pack, after refrigeration may be used to provide cool comfort to various body parts. Once the energy pack has been microwaved or chilled, it is claimed to maintain a heated or cooled temperature for hours. See also www.microcoretechnology.com.

After activation by a microwave or refrigerator, the Microcore® energy pack is to be inserted into a textile cover, which is described as intended for exclusive use with the energy pack and having no independent utility. Packs with covers are described as manufactured in a variety of shapes for use on different parts of the body. They are intended for use, similar to a hot water bottle or ice bag, in the home.

You stated that the importer intends to import the energy packs with textile covers and the energy packs separately without the covers.

ISSUE:

(1) What is the tariff classification of a Microcore® microwave- and refrigerator-activated energy pack that consists of a polyurethane bag filled with water and polyurethane foam.

(2) What is the tariff classification of a heating and cooling pad that consists of the energy pack, described above, and a textile cover.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. The majority of imported goods are classified by application of GRI 1; that is, 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, then the remaining GRIs may be applied.

GRI 3, HTSUS, is applicable when, by application of GRI 2(b), HTSUS, goods are prima facie classifiable under two or more headings.

GRI 3(a) states: The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, 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 of the goods.

GRI 3(b) states: 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.

The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the tariff system at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989). EN IX to GRI 3(b), at page 4, states that:

For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts (emphasis in original).

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

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 materials or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

Classification of the Microcore® energy pack

The subject Microcore® energy packs are described, in your letter, as designed for use in the home to provide warmth to various parts of the body “in the same way a traditional heating pad or hot water bottle is used.” When chilled, it appears, they would function as a traditional ice bag. The instant packs are water filled plastic bags, which are similar, in purpose, to traditional hot water bottles or ice bags. The user heats or chills the water filled energy pack, then applies the pack to warm or cool a part of the body just as a hot water bottle or ice bag would be applied.

The Microcore® energy pack is composed of a water filled polyurethane plastic bag with a polyurethane plastic sponge inside. Water is provided for under headings 2202, HTSUS, which provides for various types of waters consumed as beverages, and under heading 2851, HTSUS, which provides for other inorganic compounds including distilled water.

Polyurethanes are included eo nomine in heading 3909, HTSUS. As explained in EN 39.26, heading 3926, HTSUS, provides for other articles, not elsewhere specified or included, of plastics and other materials of headings 3901 to 3914.

Heading 3924, HTSUS, provides for tableware, kitchenware, other household articles and toilet articles, of plastic. According to EN 39.24, other household articles including hot water bottles and toilet articles for domestic use are the kinds of articles of plastic that are provided for under heading 3924, HTSUS

The material that retains and radiates the cold or heat in the Microcore® energy pack is water. The water of these energy packs, neither beverage nor distilled, may not be classified under either heading 2202 or 2851, HTSUS. The water in the instant energy pack does not qualify for classification in the provision for other chemical mixtures, since it is not a mixture. There are no provisions under the HTSUS for “articles of water” or “articles of other inorganic compounds.” While the water functions as water would, whether chilled or heated, in a traditional ice bag or hot water bottle, there is no HTSUS heading under which the energy pack water itself may be classified.

Articles of plastic, not more specifically provided for in any earlier heading of chapter 39, are included under heading 3926, HTSUS. Plastic containers filled with carboxymethylcellulose (used as ice-bags) are enumerated in EN 39.26, described in the second half of the heading text to 3926, as an article of other materials of headings 39.01 to 39.14. However, the instant energy pack consists of water and polyurethane sealed in plastic, and thus is not described in the second half of heading 3926. As a result, classification in heading 3926 for the energy pack is appropriate only if it is not more specifically described in an earlier heading of chapter 39.

The heading which provides the most specific description of the Microcore® energy pack, is heading 3924, HTSUS, which provides for toilet and other household articles of plastic. These energy packs are similar to articles listed in the ENs to heading 3924, HTSUS, as a toilet or other household article of plastic. Therefore, the Microcore® energy pack is classifiable under subheading 3924.90.55, HTSUS, which provides for: Tableware, kitchenware, other household articles and toilet articles, of plastic: Other: Other.

Classification of heating and cooling pads which consist of the Microcore® energy pack with a textile cover

The instant heating and cooling pads are composite goods. GRI 3(b) states that those composite goods made up of different components shall be classified as if they consisted of the component that gives them their essential character.

The textile cover, using hook and loop type closures or adjustable straps, holds the Microcore® energy pack in place on a specific body part. The textile cover appears to have no use independent of holding the energy pack in place.

The Microcore® energy pack with a textile cover is similar to other textile covered heating/cooling pads that previous Headquarters rulings (HQs) have classified as composite goods. HQ 956845 dated December 22, 1994, stated that where an article as a whole appears to function primarily as a means to provide heat or cold, the heating/cooling element will usually be considered to impart essential character on the basis of its role in relation to the use of the goods. Applying the analysis of HQ 956845 to the instant heating/cooling pads makes it clear that the heating/cooling element is the predominant component for GRI 3(b) purposes. See also HQ 957478 dated September 7, 1995. In these heating/cooling pad composite goods it is the energy pack that gives the merchandise its essential character. The “textile pouch performs a secondary role to that of the energy pack.” See HQ 957182 dated March 6, 1995. HQ 959825 dated May 19, 1999, modified HQ 957182 but affirmed that the energy pack imparts the essential character to the merchandise.

The heating and cooling pad, which consist of the Microcore® energy pack with a textile cover is a GRI 3(b) composite good and therefore classifiable, as was the energy pack itself, as toilet articles of plastic which are provided for under subheading 3924.90.55, HTSUS.

HOLDING:

The Microcore® energy pack with or without a textile cover is classifiable, as toilet articles of plastic under subheading 3924.90.55, HTSUS, which provides for: Tableware, kitchenware, other household articles and toilet articles, of plastic: Other: Other.

Sincerely,

John Durant, Director

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