Tariff classification of a potholder and oven mitts

HQ H076795 November 17, 2009 CLA-2 OT:RR:CTF:TCM H076795 GC CATEGORY: Classification TARIFF NO.: 4016.10.00 Ms. Diane L. Weinberg, Esq. Meeks, Sheppard, Leo and Pillsbury 355 Lexington Avenue, Suite 1400 New York City, New York 10017 RE: Tariff classification of a potholder and oven mitts Dear Ms. Weinberg: This is in response to your letter of August 27, 2009, in which you request a binding ruling on the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) for three products imported by your client, NY Built, Inc. (NY Built). Your ruling request was forwarded to this office from the U.S. Customs and Border Protection (CBP) National Commodity Specialist Division for reply. FACTS: At issue are three products imported by NY Built. The first two products are the Renzo™ and Arlo™ oven mitts. Aside from a difference in size (the Renzo™ is approximately 11.5 inches by 6.5 inches, and the Arlo™ is approximately 15.5 inches by 6.5 inches), both oven mitts feature the same construction. They are formed from two materials. The material that covers the back of the hand, the forearms and the back of the thumb consists of neoprene rubber sandwiched between two layers of knit polyester fabric. The material covering the palm extending up to the underside of the fingers and the thumb is neoprene backed by knit polyester fabric. The neoprene, which would come in contact with hot surfaces, has a textured surface. Both mitts feature an opening on the underside that serves as a hanging loop. The Milo™ potholder is composed of the same two materials as the oven mitts. One side consists of the textured neoprene with knit polyester backing, and the other side consists of the neoprene sandwiched between two layers of knit polyester fabric. This side of the potholder features an opening whereby the user may stick his or hand inside the potholder in order to grasp hot items. You state that two types of neoprene are used in the construction of the three subject items. The textured neoprene, which is exposed directly to hot surfaces, is heat rated for a higher degree than the neoprene sandwiched between the two layers of knit polyester fabric. All three products are presented with a hang tag that contains various product use warnings, care information, heat resistance information and the statement that the products feature “protective, textured neoprene”. ISSUE: Whether the subject merchandise is classified under heading 4016, HTSUS, as other articles of vulcanized rubber, or under heading 6304, HTSUS, as other furnishing articles? LAW AND ANALYSIS: 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 HTSUS provisions under consideration in this case are as follows: 4016 Other articles of vulcanized rubber other than hard rubber: 4016.10.00 Of cellular rubber… * * * 6304 Other furnishing articles, excluding those of heading 9404: Other: 6304.91.00 Knitted or crocheted… Both of the subject oven mitts and the subject potholder are composed of two distinct materials – a textured neoprene rubber with knit polyester backing and the smooth neoprene rubber sandwiched between two layers of knit polyester. Accordingly, both the oven mitts and the potholder are composite goods of materials of chapters 40 and 59. Classification of the subject merchandise is governed by GRI 3, which states, in pertinent part, that: When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: * * * (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in set for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or components which gives them their essential character, insofar as this criterion is applicable. In its discussion concerning “essential character,” the EN to GRI 3(b) states that: 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. We have not been provided with information relating to the value of the constituent materials that make up the instant merchandise. Based on visual examination, it appears that the two materials provide the instant potholder with approximately equal weight and bulk, whereas the textile material provides both oven mitts with more bulk and weight than the textured neoprene with knit polyester backing. Nevertheless, the difference between the two constituent materials with respect to these factors is not sufficiently definitive to find which material imparts the subject merchandise with its essential character. Thus, the role of the constituent material in relation to the use of the goods will be the focus of the essential character determination. See also Structural Industries v. United States, 360 F. Supp. 2d 1330 (CIT 2005); Conair Corp. v. United States, 29 C.I.T. 888 (2005); Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278 (CIT 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007) (where the courts looked primarily to the role of the constituent materials in relation to the use of the good in determining the essential character of merchandise for the purpose of GRI 3(b)). In this regard, the use of the subject goods is to protect the user from burns from handling hot items while cooking. We note that the textured neoprene is designed to withstand the greatest amount of heat compared to any of the other materials used to construct the subject merchandise. Moreover, it is positioned on the products in such a way as to ensure that the user’s hand maintains a firm grip on the item held. While the sleeves of the oven mitts provide the user with additional protection from radiant heat and possibly from brief contact with other hot items such as an oven rack, we find this feature to be ancillary to the overall use of the good. Accordingly, the textured neoprene with the knit polyester backing imparts both the oven mitts and the potholder with their essential character. See also New York Ruling Letter (NY) N025370, dated April 24, 2008 and NY C89275, dated July 1, 1998. All three products are thus classified under heading 4016, HTSUS. HOLDING: By application of GRI 3(b), the instant Renzo™ and Arlo™ oven mitts, and the Milo™ potholder are classified as articles of vulcanized rubber of heading 4016, HTSUS. They are specifically covered by subheading 4016.10.00, HTSUS, which provides for: “[o]ther articles of vulcanized rubber other than hard rubber: Of cellular rubber….” The column one, general rate of duty for merchandise of subheading 4016.10.00, HTSUS, is free. Duty rates are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts. A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction. Sincerely, Gail A. Hamill, Chief Tariff Classification and Marking Branch