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HQ 964061




March 7, 2001

CLA-2 RR:CR:GC 964061 nel

CATEGORY: CLASSIFICATION

TARIFF NO.: 3924.90.5500; 8505.19.0000

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

RE: Arthritis Relief Mitt and Neck & Shoulder Stress Relief Pad

Dear Ms. Gleason:

This is in reply to your letter of May 3, 2000, on behalf of R.G. Barry Corporation, requesting the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of the Arthritis Relief Mitt (mitt) and the Neck & Shoulder Stress Relief Pad (pad). A sample and packaging of each were submitted. We regret the delay.

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

FACTS:

The merchandise, as identified in your letter and on the packages, is as follows:

Arthritis Relief Mitt – The mitt measures 7.25” x 12.13” and is intended to be worn on the hand to soothe the effects of arthritis. The mitt is comprised of: a fabric cover, two Microcore® energy packs, and a magnet. Prior to importation, the energy packs and the magnet are inserted into separate pockets of the fabric cover.

Neck & Shoulder Stress Relief Pad – The pad measures 19” x 20.5” and is intended to be worn over the shoulders to soothe stress and tension in the neck and shoulder area. The pad is comprised of: a fabric cover, two Microcore® energy packs, and a magnet. Prior to importation, the energy packs and the magnet are inserted into separate pockets of the fabric cover.

The fabric cover has three separate pouches, each with a hook and loop type fastener. It is alleged that the fabric covers “serve no purpose other than to provide the medium through which the energy packs and magnets function.”

The Microcore® energy packs are described as consisting of “water and polyurethane foam sealed in a water-tight 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. According to your letter, the energy packs are designed to be heated in a microwave or refrigerated and used in the home to provide soothing heat or cold, similar to a traditional heating pad, hot water bottle or ice pack.

The magnet is described as a magnet strip with fabric trimming. Your letter provides no further information on the magnet. The magnet in the mitt measures approximately 5.75” x 10”. The magnet in the pad measures approximately 6.25” x 7.25”. The packages state that the mitt provides “magnetic comfort for aches,” while the pad provides “magnetic energy to help reduce discomfort.” According to the packages, both products are designed to provide “heat and MAGNETIC therapy” (emphasis in original).

ISSUE:

What is the tariff classification of merchandise, consisting of a fabric cover, two Microcore® energy packs, and a magnet, used for pain or stress relief.

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.

When, by application of GRI 2(b), HTSUS, goods are prima facie classifiable under two or more headings, GRI 3, HTSUS, is applicable. According to GRI 3(b), such an article will be classified as if consisting entirely of the component material that imparts essential character to the article. Where none of the component materials imparts essential character to the article, it will be classified under GRI 3(c) in the heading applicable to the component that occurs last in numerical order among all headings meriting equal consideration. Since the mitt and the pad consist of three distinct components: textile cover, energy pack, and magnet, they must be classified under GRI 3.

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).

Composite goods are classifiable as if they consisted of the component that gives them their essential character. EN VIII to GRI 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.

There are no Headquarters rulings (HQs) classifying articles containing all three of the components of the instant merchandise. However, there are several HQs that classify composite articles consisting of either a textile cover and an energy pack (or an element which holds heat or cold), or a textile cover and a magnet.

The textile cover has been considered an essential component of relatively few of these composite articles. Only when the textile component retained its basic function, was the composite article considered classifiable as an article of textile materials in Section XI, HTSUS. See HQ 956845 dated December 22, 1994, and HQ 957478 dated September 7, 1995, classifying a textile and a heating/cooling element in Section XI. See HQ 963460 dated February 16, 2000, classifying a textile and a magnet in Section XI. Unlike the textile components of these cases, the textile mitt and pad of the instant merchandise have no independent utility and do not impart essential character to the merchandise. See also HQs cited in the following paragraph.

For almost all of the composite articles made up of a textile cover and an energy pack or a magnet, it is the energy pack or the magnet that has been considered to impart the essential character of the article. For composite articles containing energy packs (or similar heating/cooling elements) see HQ 956845, HQ 957478, HQ 957182 dated March 6, 1995, HQ 962310 dated April 13, 1999, HQ 962353 dated April 13, 1999, and HQ 959825 dated May 19, 1999. For composite articles containing magnets (with textile or non-textile covers) see HQ 962172 dated May 5, 1999, HQs 962611 and 962612 dated May 4, 1999, HQ 963450 dated March 2, 2000, and HQ 962953 dated April 5, 2000.

The mitt and pad are said to provide heat and magnetic therapy. The energy pack provides heat, which is an important function of the article. Similarly, the magnet provides magnetic energy, an equally important role for the article. This is not a case similar to those cited in the preceding paragraph where the article as a whole functioned primarily to provide heating or magnetic therapy. Rather these articles provide both heating and magnetic therapy, as the package states, “[t]ogether, they bring soothing benefits .” Neither the energy pack nor the magnet is the predominant component on the basis of function or role.

According to EN VIII to GRI 3(b), to determine an article’s essential character we look also to the nature of the component, its bulk, quantity, weight or value, as well as its role in relation to the use of the merchandise. Your letter stated that the energy pack costs substantially more than the magnet. It is also apparent that the two energy packs are larger than the one magnet. However, as the energy packs and the magnet relate to the value of the article to the user, it appears that the two work in concert, both being necessary to carry out the specific activity of providing “heat and magnetic therapy” for stress or pain relief. Therefore, we conclude that classification on the basis of GRI 3(b) is unavailing, for the reason that no one component imparts essential character to the mitt or the pad.

The two headings meriting equal consideration for classification of the mitt or pad are heading 3924, HTSUS, for the energy pack and heading 8505, HTSUS, for the magnet. See HQ 964054 of this date, for analysis of the classification of the Microcore® energy pack in subheading 3924.90.5500, HTSUS, which provides for: Tableware, kitchenware, other household articles and toilet articles, of plastic: Other: Other.

The magnet is classifiable, in accordance with prior the Headquarters rulings cited above, in subheading 8505.19.0000, HTSUS, which provides for Electromagnets; permanent magnets and articles intended to become permanent magnets after magnetization; electromagnetic or permanent magnet chucks, clamps, and similar holding devices; electromagnetic couplings, clutches and brakes; electromagnetic lifting heads; parts thereof: Permanent magnets and articles intended to become permanent magnets after magnetization: Other. The heading for the magnet occurs last in numerical order of both headings meriting equal consideration and which, according to GRI 3(c), will govern the classifications of the mitt and the pad.

HOLDING:

The Arthritis Relief Mitt and the Neck & Shoulder Stress Relief Pad are properly classifiable in subheading 8505.19.0000, HTSUS, which provides for Electromagnets; permanent magnets and articles intended to become permanent magnets after magnetization; electromagnetic or permanent magnet chucks, clamps, and similar holding devices; electromagnetic couplings, clutches and brakes; electromagnetic lifting heads; parts thereof: Permanent magnets and articles intended to become permanent magnets after magnetization: Other.

Sincerely,

John Durant, Director

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