Revocation of NY 892007, dated November 24, 1993, and NY 816853, dated December 13, 1995; Modification of NY A87539, dated September 30, 1996 and NY 804966, dated December 19, 1994; Classification of Hot & Cold Compresses

HQ H055380 August 8, 2013 CLA-2 OT:RR:CTF:TCM H055380 TNA CATEGORY: Classification TARIFF NO.: Unknown Ms. Helen I. Sugar The Buffalo Customhouse Brokerage Co., Inc. Peace Bridge Plaza Warehouse Suite 211 Buffalo, NY 14213 RE: Revocation of NY 892007, dated November 24, 1993, and NY 816853, dated December 13, 1995; Modification of NY A87539, dated September 30, 1996 and NY 804966, dated December 19, 1994; Classification of Hot & Cold Compresses Dear Ms. Sugar: This letter is to inform you that U.S. Customs and Border Protection (CBP) has reconsidered New York Ruling Letter (NY) 892007, issued to you on November 24, 1993, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of three hot and cold compresses. The compresses were classified under heading 3005, HTSUS, which provides for “Wadding, gauze, bandages and similar articles (for example, dressings, adhesive plasters, poultices), impregnated or coated with pharmaceutical substances or put up in forms or packings for retail sale for medical, surgical, dental, or veterinary purposes.” In addition, this letter pertains to NY 804966, dated December 19, 1994, and NY 816853, dated December 13, 1995, and NY A87539, dated September 30, 1996. We have reviewed these rulings and found them to be in error. Therefore, this ruling revokes NY 892007 and NY 816853, and modifies NY A87539 and NY 804966. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY 892007, modify NY A87539 was published on June 9, 2010, in Volume 44, Number 24, of the Customs Bulletin. CBP received no comments in response to this notice. Since the publication of the proposed notice, CBP has identified two other rulings that should have been included in the proposed notice. These two additional rulings are included in this final revocation. Specifically, NY 816853 will be revoked and NY A87539 will be modified. FACTS: The products at issue were described as follows in NY 892007: The subject merchandise consists of reusable compresses for the application of heat or cold to an injured area of the body. The “Rapid Relief” Reusable Cold & Hot Compress, a sample of which was submitted with your inquiry, consists of a gel-filled plastic pouch that can be used as a cold or hot compress. For use as a cold compress, the pouch, after freezing, is placed on a dry towel and applied to the injured area. For use as a hot compress, the pouch, after placing it in water that has been boiled, is wrapped in a towel and applied to the injured area. According to the descriptive literature, the “Instant Hot” compress generates heat, based on the formation of a calcium chloride solution, and the “Instant Cold” compress generates cold, based on the formation of an ammonium nitrate solution. These items are also called “gel packs” in the rulings at issue here. See, e.g., NY A87539. As a result, we acknowledge that this term can also be used to describe the subject merchandise. ISSUE: Whether the compresses are classified in headings 3005, HTSUS, as wadding, gauze, bandages and similar articles or according to the inner heating/cooling material. LAW AND ANALYSIS: Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 goods are potentially classifiable under more than one heading because they consist of separate components and no one heading in the tariff provides for the goods as entered. Because the compresses are composite goods, consisting of an exterior shell 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 compresses 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 Explanatory Notes (ENs) to GRI 3(b) 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. As stated by the Court of International Trade in Structural industries v. United States, 360 F. Supp. 2d 1330, 1336 (citations omitted) (2005), "the essential character of an article is that which is indispensable to the structure, core or condition of the article, i.e., what it is." See also Conair Corporation v. United States, 29 Ct. Int’l Trade, 888, 895 (citations omitted) (2005), (discussing "the concept of ‘essential character’ found in GRI 3(b)"). 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 Headquarters Ruling Letters (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; and HQ 957478, dated September 7, 1995. The composite goods 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 cover is merely a means to contain the inner chemicals. This criterion indicates that the essential character of the good is provided by the chemicals. We therefore conclude that the essential character of the products is provided by the material that provides the heating or cooling. Under GRI 3(b), the compresses are classifiable by the chemical solution or gel providing the heat or cold to the affected area. HOLDING: By application of GRI 3(b), the compresses are classified in the heading in which the chemical solution or gel providing the heat or cold is classified. EFFECT ON OTHER RULINGS: NY 892007, dated November 24, 2003, and NY 816853, dated December 13, 1995 are REVOKED. NY A87539, dated September 30, 1996, and NY 804966, dated December 19, 1994, are MODIFIED. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division