July 10, 2009 CBP Bulletin Notice on Classification of Electrically-Heated Throws and Seat Pads for Automotive Use
In the July 10, 2009 issue of the U.S. Customs and Border Protection Bulletin (Vol. 43, No. 27), CBP published a notice proposing to revoke a ruling and a treatment as follows:
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Proposed revocation of ruling; proposed revocation of treatment. CBP is proposing to revoke one ruling on the classification of Electrically-Heated Throws and Seat Pads for Automotive Use. Additionally, CBP proposes that this notice covers any rulings on this merchandise that may exist but have not been specifically identified. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.
CBP states that any party who has received an interpretive ruling or decision on the merchandise that is subject to the proposed revocations, or any party involved with a substantially identical transaction, should advise CBP by August 9, 2009, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.
Electrically-Heated Throws and Seat Pads for Automotive Use. The merchandise is described as the Thermo Throw and the Thermo SoftPad. These are electric heating devices designed to be placed on the rear bench seat and the front seat of a motor vehicle, and to be plugged into the vehicle's cigarette lighter outlet to warm the occupants. They consist of an outer cover of one or more layers of polyester knit pile fabric and, in the SoftPad, a layer of plastic foam. Between the fabric layers are narrow woven tapes that contain copper wire and/or carbon fibers forming a criss-cross grid connected to electric wires and a thermostat that attach to a power cord. On this cord is an ON/OFF temperature control switch and a cigarette lighter adapter or plug.
CBP is proposing to issue HQ H062211 in order to revoke HQ 963001 and reclassify the Thermo Throw and the Thermo SoftPad under HTS 8516.79.00 as "other electro-thermic appliances" rather than under HTS 8543.89.96 (now 8543.90.88) as "electrical machines and apparatus, having individual functions".
CBP proposes this change as a correction based on the Explanatory Notes (ENs), GRI 1, U.S. Additional Rule of Interpretation 1(a), and previous rulings. Heading 8516 provides, in relevant part, for "Other electro-thermic appliances of a kind used for domestic purposes." The heading is a use provision, governed by Additional U.S. Rule of Interpretation 1(a).
Explantory Note 85.16 (E) states the following:
"(E) OTHER ELECTRO-THERMIC APPLIANCES OF A KIND USED FOR DOMESTIC PURPOSES. This group includes all electro-thermic machines and appliances provided they are normally used in the household. Others include: (18) Bed warmers."
Based on the purpose for which they are used (i.e., to warm car seats), CBP proposes that the Thermo Throw and the Thermo SoftPad are of the same class or kind of good as bed warmers and other such electro-thermic appliances used in the household. (Per EN 85.16 (E).) As such, they are entirely described by heading 8516 at GRI 1. Insofar as the merchandise is classifiable under heading 8516, it cannot be classified under heading 8543, by the terms of that heading, because it is "specified or included elsewhere in Chapter 85."
CBP takes the position that Note 1(a) to Chapter 85, applies to electrically warmed articles of bedding and articles designed to be worn on or about the person. The automotive pads at issue are not articles of bedding and are designed to be sat upon, not worn on or about the person. Accordingly, CBP now proposes that they are not excluded from classification in Chapter 85 by Chapter 85, Note 1(a).
CBP has consistently classified heating pads under subheading 8516.79. (See bulletin for ruling numbers.) As the merchandise is classified at GRI 1, there is no need to consider classification using GRI 3 as in HQ 963001.
CBP now proposes that by application of GRI 1, and U.S. Additional Rule of Interpretation 1(a), the Thermo Throw and Thermo SoftPad are classified under HTS 8516.79.00, which provides for: "Other electro-thermic appliances of a kind used for domestic purposes; . . . Other electro-thermic appliances: Other."
Proposed: 8516.79.00, 2.7%; Current: 8543.90.88, 2.6% (formerly 8543.89.96)
July 10, 2009 CBP Bulletin (Vol. 43, No. 27) available athttp://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2009/