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HQ W968448




December 19, 2006

CLA-2 RR:CTF:TCM W968448 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 3824.90.9190

Eleanore Kelly-Kobayashi, Esq.
Rode & Qualey
55 West 39th Street
New York, NY 10018

RE: Classification of I.C.E/Heat™ therapy articles.

Dear Ms. Kelly-Kobayashi:

This is in reference to your letter dated October 17, 2006, in which you requested the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of two I.C.E./Heat™ therapy articles.

FACTS:

Product number 486911 is a one-size shoulder wrap that is composed of an exterior surface of neoprene covered with a stretch knit nylon fabric. It measures approximately 45” long by 10” wide. It is positioned on the injured shoulder area and wrapped around the chest and back and fastened by means of a small strap which fits under the opposite underarm area and is secured by hook and loop fasteners. The shoulder wrap contains a pocket to hold a reusable hot/cold gel pack on the shoulder area.

Product number 486916 is also a one-sized hot/cold wrap that can be placed around the back, shoulder, ankle or knee. It is composed of an exterior surface of neoprene covered with a stretch nylon fabric and measures approximately 24” long by 5” wide. It contains a pocket to hold a reusable hot/cold gel pack and fastens with hook and loop fasteners.

The gel packs of both articles are intended to be heated or chilled prior to use. The hook and loop fastening straps attached to the articles keep them in place over the intended area. Packaging inserts indicate that the wraps provide compression but emphasize the heat and cold therapies that the wraps provide.

ISSUE:

Whether the I.C.E./Heat™ therapy articles 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 is a particular heading, that heading must describe the article.

The goods are potentially classifiable under more than one heading, i.e., heading 6307, HTSUSA, or heading 3824, HTSUSA, because they consist of separate components and no one heading in the tariff provides for the goods as entered. Because the wraps are composite goods, consisting of a textile exterior and a chemical filler, for tariff purposes, they constitute goods consisting of two or more materials and substances. Thus, they may not be classified solely on the basis of GRI 1. The wraps are described in GRI 2(b) which covers mixtures or combinations of materials and substances and goods consisting of two or more materials and substances. According to GRI 2(b), “The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” Under GRI 3(b), classification of an article is to be determined on the basis of the component which gives the article its essential character. The EN’s provide that, if this rule applies, goods shall be classified as if they consisted of the material or component which gives them their essential character. EN Rule 3(b)(VIII) lists as factors to help determine the essential character of such goods the nature of the materials or components, their bulk, quantity, weight or value, and 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 171 F. 3d 1370 (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.

The composite goods being classified are being imported to provide heat or cold therapy. While the articles do provide some compression to the affected area, the indispensable function of the articles is the ability to provide heat or cold. The textile cover provides the article with the flexibility necessary to enable the wearer to wrap the article around the affected area while simultaneously enjoying the benefits of the hot or cool contents. However, the textile cover is merely a means to enable the gel pack to function more efficiently. This criterion indicates that the essential character of the good is provided by the gel pack. We therefore conclude that the essential character of the product is provided by the gel pack so that, under GRI 3(b), the I.C.E./heat™ therapy articles are classifiable in heading 3824, HTSUSA.

HOLDING:

The I.C.E./heat™ therapy articles 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
Tariff Classification and Marking Branch

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