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HQ 966165




May 15, 2003

CLA-2 RR:CR:GC 966165 AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3824.90.91

Mr. Bennett Johnson
Nissin Customs Service, Inc.
1540 West 190th Street
Torrance, CA 90501

RE: Banno Sokai Sheet

Dear Mr. Johnson:

This is regarding your letter, dated January 6, 2003, on behalf of the importer, Décor Japan, Inc., concerning the classification of Banno Sokai Sheet, under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise, Banno Sokai Sheet, is a packet of 5 grams of powder enclosed by a second packet with adhesive strips. Several sheets are sold in one box, which bears the statement “[T]his product is not intended to diagnose, treat, cure or present [sic] any disease” and cautions “[D]on’t use Sokai Sheet on wounds, sensitive skin or other damages.”

You state the powder is composed of 13% dried wood vinegar extract, 5% dried Gymnema Sylbestre extract, 5% Tourmaline fine powder, 69% malto dextrim TK-16 and 8% malto dextrim pineflow.

Customs Laboratory report #SF20030652, dated May 7, 2003, states that “laboratory analyses of the powder in the sample indicate that it is a mixture, consistent with being composed primarily of dextrin and containing dried wood vinegar extract, plant extract and inorganic material. The inorganic material is silica (silicon dioxide).” The laboratory report also analyses the sheet components as follows: polyester nonwoven 10.9%, pouch paper section 4.5%, pouch nylon non-woven section 4.3%, paper backing 11.6%, paper strips 2 (adhesive) 3.1%, and powder 65.9%.

You state that the “tree sap is known to absorb excess water from the body, though the product is not medically proven to provide the effect of anti-oxidation.” You request classification of the merchandise in heading 1302, HTSUS, as a vegetable extract.

ISSUE:

Whether the Banno Sokai Sheets are classified as an extract, as a chemical product or as a textile good according to their essential character.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all 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, the remaining GRIs may then be applied in order.

GRI 2(b) requires that goods consisting of different materials be classified according to the principles of GRI 3. GRI 3(a) requires that amongst competing headings, the most specific heading be used, but headings which refer to part only of the goods are equally specific. GRI 3(b), provides that composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. Explanatory Note 3(b)(VIII) to GRI 3(b) states that essential character may 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."

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration is as follows:

1302 Vegetable saps and extracts; pectin substances and pectates; agar-agar and other mucilages and thickeners, whether or not modified, derived from vegetable products:

3005 Wadding, gauze, bandages and similar articles (for example, dressings, adhesive plaster, poultices), impregnated or coated with pharmaceutical substances or put up in forms or packings for retail sale for medical, surgical, dental or veterinary purposes:

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:

The only heading that could describe the entire article using GRI 1 is heading 3005, HTSUS. However, even if the article could be described as an adhesive plaster or poultice, the Banno Sokai Sheets are not impregnated or coated with pharmaceutical substances and are not used for medical purposes. The box in which the products are packed includes the text “[T]his product is not intended to diagnose, treat, cure or present [sic] any disease.” Furthermore, the articles described in heading 3005, HTSUS, are generally used in wound care. The label on the instant merchandise warns the user against placing the packet on a wound. Hence, these goods are not described in heading 3005, HTSUS.

The instant merchandise consists partly of plant and chemical components and partly of paper components of Chapter 48 and non-woven textile components of Chapter 56. Thus it is described in GRI 2(b) as goods consisting of two or more materials and substances and must be classified according to the principles of GRI 3(b) which governs the classification of mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale.

Recently, there have been several court decisions on "essential character" for purposes of GRI 3(b). These cases have looked primarily to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed CAFC No. 98-1227 (March 16, 1999). Based on the foregoing, we conclude that in an essential character analysis for purposes of GRI 3(b), the role of the constituent materials or components in relation to the use of the goods is generally of primary importance, but the other factors listed in EN Rule 3(b)(VIII) should also be considered, as applicable.

First, according to you, the primary purpose of the merchandise is to absorb fluid and toxin through the skin. The paper and textile portions of the merchandise serve the subordinate purpose of placing the powder properly on the sole of the feet such that it can accomplish its absorptive function. Hence, the essential character of the merchandise is determined by the composition of the powder.

Heading 1302, HTSUS, describing vegetable extracts, does not describe the entire chemical mixture that contributes to the sheet’s ability to absorb bodily fluids. The mixture of wood vinegar extract, silicon dioxide, starch and other chemicals in the packet performs the absorption function. This mixture of chemicals is classified in heading 3824, HTSUS, as chemical preparations of the chemical or allied industries (including those consisting of mixtures of natural products). Hence, the instant merchandise is classified in subheading 3824.90.91, HTSUS, as a chemical preparation.

HOLDING:

At GRI 3(b), the Banno Sokai Sheet is classified in subheading 3824.90.91, HTSUS, the provision for “[p]repared 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: [o]ther: [o]ther: [o]ther: [o]ther: [o]ther."

Sincerely,

Myles B. Harmon, Director

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