CLA-2 OT:RR:CTF:TCM H017897 JER
Port Director
Port of Newark
U.S. Customs and Border Protection
1100 Raymond Boulevard
Newark, NJ 07102
RE: Application for Further Review of Protest No. 4601-07-101893; foot warmers
Dear Port Director:
This is our decision regarding the Application for Further Review of Protest No. 4601-07-101893, timely filed on behalf of Hotronic USA, Inc., (“Hotronic”), concerning the classification of “foot warmers” under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject merchandise described as “foot warmers” consist of a pair of insole-shaped Cambrelle Covers and Strips, two heating elements, two battery packs and a battery re-charger. The foot warmers are designed to be inserted as removable insoles in various types of footwear and worn primarily during cold temperature activities. According to the importer’s website and the information provided, the heating elements are thin mechanisms with an imbedded microchip which generates the heat for the article and which are permanently attached to a power cord that connects the heating elements to the battery packs. The battery packs are designed to be worn on the leg or footwear of the consumer. These items are imported together and are marketed and sold as a retail set.
ISSUE:
Whether the foot warmers are classified under heading 8543, HTSUS, as electrical machines having individual functions or under heading 6406, HTSUS, as removable insoles.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation pursuant to Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006).
The merchandise at issue was entered on October 4, 2006 and October 7, 2006, respectively. Notice of rate advance (CBP Form 29) was issued on January 18, 2007, reclassifying the foot warmers in heading 8543, HTSUS. The Port liquidated the subject merchandise on February 23, 2007 and on March, 9, 2007, under heading 8543, HTSUS.
Further Review of Protest No. 4601-07-101893 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order.
The 2006 HTSUS provisions under consideration are as follows:
6406 Parts of footwear (including uppers whether or not attached to soles other than outer soles); removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof:
Other:
6406.99 Of other materials:
6406.99.90 Other…….
8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
8543.89 Other:
8543.89.96 Other……
8543.89.9695 Other
Counsel for the Protestant asserts that the proper tariff classification of the subject foot warmers is under heading 6406, HTSUS, which provides in relevant part for “Parts of footwear…; removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof.” Specifically, Protestant alleges that the action of the Port is inconsistent with the decisions in Headquarters Ruling Letter (“HQ”) 955227 and HQ 955228, both dated January 13, 1994, in which CBP found held that substantially similar merchandise imported by Hotronic was classified under heading 6406, HTSUS. Counsel further argues that the heating element imparts the essential character of the article. We agree.
The foot warmers consist of unfinished insoles, heating elements, battery packs and a charger. As the foot warmer consists of goods which are prima facie classifiable in two or more headings, (i.e. heading 6406, HTSUS, in the case of the insoles and heading 8543, HTSUS, for the heating element), classification cannot be determined according to GRI 1.
GRI 3 provides, in pertinent part, that when goods are prima facie, classifiable under two or more headings, classification shall be effected by the following:
(a) [t]he heading which provides the most specific heading shall be preferred to headings providing a more general description. However, … when two or more headings each refer to part only of the items in a set, those headings are to be regarded as equally specific, even if one of them gives a more complete or precise description of the goods. (b) … 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 … (c) [w]hen goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
Inasmuch as the foot warmers are goods put up in a set for retail sale, classification is governed by GRI 3(b), HTSUS. As such, the subject merchandise is classifiable by the component which imparts the essential character.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN VIII to GRI 3(b), provides the following guidance when determining essential character:
(VIII) 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.
Because the subject merchandise is designed, marketed and sold as foot warmers, the essential character could be derived from either the removable insole or from the heating element (which is what actually heats up the insole). The role of the removable insole provides the merchandise with the physical character, support and design necessary to the structure and overall function of the subject foot warmers. Yet, absent the heating element the purpose of the article could not be performed. See, HQ 955227, which found that the heating element, which was comprised of a copper layered disk and a microchip, imparted the essential character of the article because this component generated the heat for the insole. Inasmuch as the heating element imparts the essential character of the foot warmers, it appears that the foot warmers are classified in heading 8543, HTSUS.
However, merchandise classified in heading 8543, HTSUS, is subject to the exclusionary language of Note 1(a) to Chapter 85.
Note 1(a) to Chapter 85 provides that:
1. This chapter does not cover:
(a) Electrically warmed blankets, bed pads, foot-muffs or the like; electrically warmed clothes, footwear or ear pads or other electrically warmed articles worn on or about the person [.]
The subject foot warmers are designed to be installed in several types of footwear and are marketed as a “Foot Warming System” usable while skiing, snow boarding and during general other general cold-temperature activities. We find that the subject merchandise is worn as a part of footwear, is an electrically warmed article and is therefore sufficiently described in Note 1 (a) to Ch. 85. Accordingly, the subject foot warmer is precluded from classification under heading 8543, HTSUS, by operation of the exclusionary language in Note 1 (a) to Ch. 85. Therefore, we find that the foot warmers are classified in heading 6406, HTSUS.
Our decision is consistent with the classification of substantially similar foot warmers imported by Hotronic. See, HQ 955227 and HQ 955228, in which CBP found that foot warmers (also referred to as “heated insoles”) consisting of similar components as the subject merchandise without the re-chargeable battery pack, were classified under subheading 6406.99.09 as an incomplete or unfinished heated insole.
HOLDING:
By application of GRI 3(b) and by operation of the exclusionary language of Note 1 (a) to Chapter 85, the subject merchandise is classified under heading 6406, HTSUS. It is specifically provided for under subheading 6406.99.90, HTSUS, which provides for “Parts of footwear (including uppers whether or not attached to soles other than outersoles); removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof: Other: Of other material: Other.” The 2006 column one, general rate of duty is Free.
Based on the law and analysis provided above and the information us, you are instructed to ALLOW the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
No later than 60 days from the date of this letter, the Office of International Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP homepage on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division