OT:RR:CTF:TCM H145915 GC
Mr. Fred Thiemann
Apex Medical Corporation
Carex Health Brands
Post Office Box 2526
Sioux Falls, South Dakota 57101
Re: Request for reconsideration of NY N028015; tariff classification of a “hand warmer” and a “foot warmer”
Dear Mr. Thiemann:
This is in response to your requests, dated November 12, 2010 and December 20, 2010, for U.S. Customs and Border Protection (CBP) to reconsider New York Ruling Letter (NY) N028015, dated May 30, 2008.
The subject merchandise, identified as “hand warmer” and “foot warmer” (no style numbers given) are described in NY N028015, in pertinent part, as follows:
…a pair of polyester slippers in a clear plastic retail package labeled “Soothing Foot Warmers with Aromatherapy and a pair of mittens in a clear plastic retail package labeled “Warming Mittens with Aromatherapy.”
Both items have removable, microwavable pouches containing aromatic herbs identified as rice, cinnamon, eucalyptus and clove. The pouch is heated in a microwave oven, inserted into the slipper or mitten, and then worn to warm the hands and feet.
* * *
The pair of hand warmers are mitts made up of 100% polyester brushed knit fleece fabric featuring a partially elasticized wrist, a separation for the thumb, and a separate pocket on the palm side into which an herb pouch may be inserted.
Examination of the samples, provided with your letter of December 20, 2010 and enclosed herein, indicate that the slippers are constructed from multiple pieces (i.e. they feature seams) of polyester textile, covering the ankle, and having a separately applied outer sole designed with a compartment to accommodate the filled pouch.
In NY N028015, CBP classified the subject “foot warmer” under subheading 6405.20.90, HTSUS, which provides for “other footwear: with uppers of textile materials: other”. The subject “hand warmer” was classified under subheading 6116.93.88, HTSUS, which provides for “gloves, mittens and mitts, knitted or crocheted: other: of synthetic fibers: other: other: without fourchettes”. In your request for reconsideration, you argue that the subject merchandise should be classified under heading 1404, HTSUS, which provides for “vegetable products not elsewhere specified or included”, and cite to NY I81427, dated May 10, 2002. The merchandise subject to NY I81427 is described as “…an oval shaped textile pouch measuring approximately 5 inches by 9.5 inches, filled with a mixture of 95 percent flax seeds and 5 percent lavender. The pouch is to be heated in a microwave and inserted into its accompanying slipper/mitten-like cover.”
We find that the description of the merchandise subject to NY I81427 does not allow us to determine whether the merchandise at issue here is substantially similar. In particular, the reference to the “slipper/mitten-like cover” does not indicate whether the warmer discussed in NY NI81427 is, like the instant "Soothing Foot Warmers with Aromatherapy” or the pair of "Warming Mittens with Aromatherapy" are constructed of multiple pieces in a manner that respectively makes them textile articles of Section XI, HTSUS, or footwear of Chapter 64, HTSUS.(
Accordingly, we conclude that the subject merchandise was properly classified under heading 6116, HTSUS (the mittens) and heading 6405, HTSUS (the slippers). See, e.g., NY N052959, dated March 10, 2009, NY M82846, dated May 15, 2006, NY M82352, dated April 28, 2006, NY L88013, dated October 28, 2005, NY K89792, dated October 19, 2004, NY K82483, dated February 5, 2004, and NY I83355, dated July 9, 2002. Where therefore affirm NY N028015.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division