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HQ 955227

January 13, 1994

CLA-2 CO:R:C:M 955227 DFC


TARIFF NO.: 6406.99.90

Stephen J. Leahy, Esq.
Leahy & Ward
Attorneys at Law
63 Commercial Wharf
Boston, Massachusetts 02110

RE: Insoles, heated, unfinished; Cambrelle cover; Footwear; Composite goods; Essential character; GRI 2(a); GRI 3(b); Note 1(a) to chapter 85; HQ 955105

Dear Mr. Leahy:

This is in reference to your letter dated September 7, 1993, to the District Director of Customs in Boston, Massachusetts, on behalf of Hotronic U.S.A. Inc., concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a cambrelle cover and a heating element for a footwarmer. Your letter, together with the sample and descriptive literature, has been referred to this office for a response.


The merchandise is a heating element with attached power cord and a cambrelle cover. It is imported in a package containing two heating elements, two cambrelle covers and is sold to the ultimate purchaser in its condition as imported.

The round heating element measures approximately 2-1/8 inches in diameter with an attached power cord measuring approximately 26 inches in length, with a fitting at the end opposite the heating element. The heating element is said to consist of an element disk and a microchip. The element disk is paper thin and constructed of multiple layers of copper, fiberglass and resin. The element serves to disburse the heat generated by the microchip attached underneath the layers.

The microchip is located in the center of the element. The temperature of the microchip is determined by the setting selected on the battery pack. No information is provided in this ruling request concerning the battery pack. However, in HQ 955105, issued to you on December 10, 1993, in response to another ruling request dated September 7, 1993, we determined that a rechargeable nickel-cadmium storage battery and a battery charger, designed to power a footwarmer, were classifiable under subheading 8507.30.00, HTSUS, the provision for nickel-cadmium storage batteries.

The cambrelle cover [insole] is made from nylon. The cover is in the shape of the sole of a foot. It measures approximately 12-1/4 inches in length and 4 inches in width at the midpoint.

One side of the cambrelle cover has a plastic sheet covering an adhesive. The heating element is placed inside the footwear, the cambrelle cover is cut to the correct shape and size, the plastic sheet is removed and the cambrelle cover is placed over the heating element, adhesive side down, to hold the heating element in place.

It is your position that the importation qualifies as a composite good pursuant to GRI 3(b), HTSUS, in that it consists of two or more articles classifiable under different headings. Further, you assert that the heating element imparts the essential character to the merchandise which requires that it be classified under subheading 8516.80.80, HTSUS, which provides for electric heating resistors, other, with duty at the rate of 3.9% ad valorem.


Whether the merchandise is considered an unfinished or incomplete heated insole pursuant to GRI 2(a), HTSUS, or is it considered a composite good pursuant to GRI 3(b), HTSUS.


Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

It is our opinion that GRI 3(b), HTSUS, does not govern the classification of the subject merchandise. As you are aware, the first four GRI's are to be applied in order. GRI 2(a), HTSUS, which we believe is applicable, reads as follows:

2. (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.

In general, essential character has been construed to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. In addition, factors such as bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods are to be utilized, though the importance of certain factors will vary between different kinds of goods.

It is your position that the heating element gives the essential character to the merchandise which appears to require its classification under chapter 85, HTSUS. However, we must consider Note 1(a) to chapter 85, HTSUS, which reads, as follows:

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[.]

It is our view that the exclusionary language in note 1(a) to chapter 85, HTSUS, precludes classification of the incomplete or unfinished heated insole therein. Clearly, this merchandise is described within that portion of note 1(a) to Chapter 85, HTSUS, which refers to "other electrically warmed articles worn on or about the person." Further, we consider the incomplete or unfinished heated insole to be an "article" in and of itself rather than "part" of an article.

The heating element and the cambrelle cover [textile] have the essential character of finished or complete removable insoles or similar articles. Inasmuch as the heating element imparts the essential character to the finished or complete insole, it is our opinion that the incomplete or unfinished heated insole is classifiable under subheading 6406.99.90, HTSUS, which provides for removable insoles and similar articles, other, of other materials, other. Although you state that the cambrelle cover serves no function except to hold the heating element in place, we are aware that cambrelle is widely used in footwear linings and removable insoles because it is unusually good at wicking away moisture and drying out, which is important in keeping the foot comfortable.

You have also requested a ruling as to the tariff classification of a piece of cambrelle identical in construction to the one submitted but in the shape of a rectangle measuring approximately 15 inches by 5 inches. The rectangular piece of cambrelle has a piece of plastic covering the adhesive side of the cambrelle described above.

We are unable to issue a ruling as to the tariff classification of this merchandise based on the limited amount of information before us. It is requested that you provide a sample in its condition as imported. Also, we need information as to what processes this merchandise is subject to after importation. For example, whether the cambrelle goes to a manufacturer for processing and if so, its condition when it reaches the consumer. If the merchandise does go directly to the consumer, what processing has to be accomplished by the consumer to render the product usable.


The merchandise is considered an unfinished or incomplete heated insole pursuant to GRI 2(a), HTSUS.

The incomplete or unfinished heated insole is dutiable at the rate of 18% ad valorem under subheading 6406.99.90, HTSUS.


John Durant,
Commercial Rulings Division

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