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HQ 967817




August 23, 2005

CLA-2 RR:CTF:TCM 967817 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 3824.90.9190

Mr. William Trzeciak
Midnight Imports
5911 Franklin Avenue
La Grange, IL 60525

RE: Classification of fishing rod handle warmers.

Dear Mr. Trzeciak:

This is in reference to your letter dated June 27, 2005, to the Director, National Commodity Specialist Division, New York, in which you requested the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of fishing rod handle warmers. Your letter and samples were forwarded to this office for review and response.

FACTS:

The article at issue is identified as “Wild Bill’s Hot Rods.” The article is packaged with two textile sleeves and two heat packs. After activation, the heat pack is placed into the textile sleeve. The sleeve is then placed around the rod grip and is secured by attaching a hook and loop fastener. The packaging indicates that the fishing rod handle warmers eliminate the need for gloves “allowing you to rig your line and remove fish with warm fingers.”

ISSUE:

Whether the fishing rod handle warmers are classifiable in heading 6307, HTSUSA, as other made up textile articles or in heading 3824, HTSUSA, as chemical preparations not elsewhere specified or included?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

As stated above, the GRIs are to be applied in order. GRI 1 provides that articles are to be classified by the terms of the headings and any relevant Section and Chapter Notes. For an article to be classified in a particular heading, that heading must describe the article.

Because the fishing rod handle warmers are composite goods, consisting of a textile sleeve exterior, classifiable in heading 6307, HTSUSA, and a chemical filler, classifiable in heading 3824, HTSUSA, they may not be classified solely on the basis of GRI 1. In pertinent part, GRI 2(b) provides that any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. However, GRI 2(b) adds that the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. Accordingly, GRI 3 is utilized when, by application of GRI 2(b), a good consists of materials or components which are prima facie classifiable under two or more headings.

GRI 3(a) states that when goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

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.

In this instance, headings 6307 and 3824, HTSUSA, are equally specific in relation to one another. As we cannot classify these goods pursuant to GRI 3(a), we turn to GRI 3(b) which 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.

Explanatory Note (EN) VIII to GRI 3(b) states:

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.

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.

Prior rulings that have classified heating and/or cooling composite goods have differentiated between goods on the basis of whether the article as a whole appears to function primarily as a means to provide heat or cold. In such instances, the heating/cooling element will impart the essential character. See HQ 964851, dated April 18, 2001; HQ 966262, dated May 29, 2003; HQ 957182, dated March 6, 1995; HQ 959825, dated May 19, 1999; HQ 964054, dated March 2, 2001; HQ 956845, dated December 22, 1994; HQ 957478, dated September 7, 1995.

We recognize that there are valid rulings which have determined that the essential character of heating and/or cooling composite goods was imparted by the component used to hold the heating and/or cooling element. We are currently reviewing the existing rulings for possible revocation or modification in accordance with 625 (19 U.S.C. 1625) procedures. Any action taken in accordance with these procedures will be published in the Customs Bulletin.

The composite goods being classified are being imported to provide heat so that the user does not need to use gloves. The textile cover provides the
article with the flexibility necessary to enable the user to wrap the article around the fishing rod handle while simultaneously enjoying the benefits of the heated contents. However, the textile cover is merely a means to enable the heat pack to function more efficiently. The indispensable function of the article is its ability to provide heat. This criterion indicates that the essential character of the good is provided by the heat pack. We therefore conclude that the essential character of the product is provided by the heat pack so that, under GRI 3(b), the fishing rod handle warmers are classifiable in heading 3824, HTSUSA.

HOLDING:

The fishing rod handle warmers are classified in subheading 3824.90.9190, HTSUSA, which provides for: “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: Other: Other: Other: Other: Other.” The general, column one rate of duty is 5% ad valorem.

Sincerely,

Gail A. Hamill, Chief

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