CLA-2 RR:TC:TE 960319 jb
Joseph P. Cox, Esq.
Stein Shostak Shostak & O'Hara
515 South Figueroa Street, Suite 1200
Los Angeles, California 90071-3329
RE: Request for Reconsideration of PD A86147; classification of
children's "Diaperaps"; Chapter 61, Note 6(b); Chapter 62, Note
4(b); essential character
Dear Mr.Cox:
This is in response to your letter, dated March 6, 1997, on
behalf of your client, Diaperaps, requesting reconsideration of
Baltimore Port Decision (PD) A86147, dated August 23, 1996, which
classified four waterproof babies' diaper type garments,
collectively referred to as "Diaperaps", in headings 6111 and
6209, Harmonized Tariff Schedule of the United States (HTSUS).
Samples of the subject garments were submitted for examination.
FACTS:
The four garments are made of 60 percent cotton/40 percent
polyester knit fabric laminated to polyurethane and feature:
Lightweight Diaper Cover
A wide band with hook and loop type fasteners at the
front waistband for closure. Leak-proof gussets are
sewn into the leg openings.
Diaper Protector
A wide band with hook and loop type fasteners at the
top of the front of the diaperap and two tabs on each
side of the diaperap for closure. Leakproof gussets
are sewn into the leg openings.
Training Pant
This garment has the appearance of an underwear "brief"
and features a knit cotton lining. An absorbent
polyester/rayon panel has been inserted between the lining and the outer shell.
Swim Diaper
This garment has the appearance of an underwear brief
and features a knit polyester fabric shell, and elastic
which has been sewn into the leg openings and
waistband.
The babies' diaper cover, diaper protector and swim diaper
were classified in subheading 6111.20.6040, HTSUSA, which
provides for, babies' garments and clothing accessories, knitted
or crocheted: of cotton: other: other: other: other. The
training pant was classified in subheading 6209.30.3040, HTSUSA,
which provides for, babies' garments and clothing accessories: of
synthetic fibers: other: other: other. In your opinion this
classification is incorrect. You propose that the correct
classification for the subject merchandise is in heading 3926,
HTSUS, which provides for, other articles of plastics and
articles of other materials of headings 3901 to 3914. In support
of this claim you make reference to:
1. GRI 3(b)- in your opinion the essential character of the
subject merchandise is imparted by the polyurethane;
2. HQ 959040, dated September 16, 1996.
ISSUE:
Whether the subject merchandise is properly classified in
headings 6111 and 6209, HTSUS, or heading 3926, HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's). GRI 1 requires
that classification be determined according to the terms of the
headings and any relative section or chapter notes. Where goods
cannot be classified solely on the basis of GRI 1, the remaining
GRI's will be applied, in the order of their appearance.
Although the subject merchandise is clearly a babies'
garment, we must first determine the fabric composition. Heading
5903, HTSUSA, provides for textile fabrics impregnated, coated,
covered or laminated with plastics. Note 2(a)(1), Chapter 59,
HTSUSA states, in pertinent part:
Heading 5903 applies to:
(a) Textile fabrics, impregnated, coated, covered or
laminated with plastics, whatever the weight per square
meter and whatever the nature of the plastic material
(compact or cellular), other than:
(1) Fabrics in which the impregnation, coating or
covering cannot be seen with the naked eye
(usually chapters 50 to 55, 58 or 60); for the
purpose of this provision, no account should be
taken of any resulting change of color;
(5) Plates, sheets or strip of cellular plastics,
combined with textile fabric, where the textile
fabric is present merely for reinforcing purposes
(chapter 39);
Previous to making a determination, Customs must initially
examine coated fabrics with the naked eye alone. The subject
merchandise is composed of a cotton/polyester blend and a
polyurethane laminate which is visible to the naked eye. As the
fabric meets the standard mandated by Note 2(a)(1) to chapter 59,
HTSUSA, that is, that the plastic coating be discernible to the
naked eye, the subject merchandise is considered a coated fabric
for tariff purposes. Accordingly, as this is a coated fabric
which is eo nomine provided for under chapter 59 of the tariff,
there is no need to proceed further to a GRI 3(b) essential
character determination.
In HQ 959040, dated September 16, 1996, a boys' jacket
constructed of cotton knit fabric coated with cellular plastic
was classified in heading 3926, HTSUSA. This determination was
based on two distinct facts: 1) the textile backing was present
merely for reinforcing purposes, that is, to prevent the jacket
from stretching and/or tearing and, 2) the jacket was coated with
cellular plastic (and not as in this case, compact plastic). As
such, the classification of that merchandise in chapter 39, as an
article of plastic, was appropriate as per the terms of Note
2(a)(5) to chapter 59.
The subject "Diaperaps" are clearly distinguishable from the
merchandise of HQ 959040 in that the textile component serves an
equally important function as the plastic laminate. The textile
component of the Diaperaps is not merely for reinforcing purposes
but enhances the identity of these types of garments. As is
indicated on the packaging of the Training Pant, "My soft and
comfortable design encourages use. Feels like underwear not
bulky diapers." We agree with this statement. The soft fabric
found on all these garments combined with attractive prints makes
these garments both easy to care for and pleasing to wear for
baby. We have already stated that given the eo nomine
classification of this merchandise as a laminated fabric, an
essential character determination is precluded. However, we
bring to your attention that even if our analysis had directed us
to an essential character determination under GRI 3(b), the
outcome would not have changed in this case. For the lightweight
diaper cover, the diaper protector, and the swim diaper, the
component which imparts the essential character is the coated
fabric. In essence, it is the coated fabric which keeps the
moisture in and gives the diaper its commercial value and makes
it usable for its intended purpose. Thus, classification in
heading 6111, HTSUS, in the provision for "of cotton, knit" would
be appropriate for these articles. For the training pant
however, the absorbency feature attributed to this article is not
in the coated fabric, but in the absorbent polyester/rayon panel
that has been inserted between the lining and the outer shell.
As such, classification in heading 6209, HTSUS, as "of synthetic
fibers, not knit" would also be appropriate.
Accordingly, the appropriate classification for this
merchandise is not in heading 3926, HTSUS, but in the provisions
for babies' garments in headings 6111 and 6209, HTSUS. This is
consistent with numerous Customs decisions on virtually identical
merchandise. See, e.g., HQ 959901, dated November 7, 1996; HQ
956260, dated August 18, 1994; HQ 083468, dated September 25,
1989; NY A89238, dated December 3, 1996; NY 858609, dated
December 11, 1990; NY 857081, dated October 19, 1990; NY 852513,
dated May 24, 1990.
The subject merchandise was properly classified in PD A86147
in headings 6111 and 6209, HTSUS.
HOLDING:
The babies lightweight diaper cover, diaper protector and
swim diaper are properly classified in subheading 6111.20.6040,
HTSUSA, which provides for, babies' garments and clothing
accessories, knitted or crocheted: of cotton: other: other:
other. The applicable rate of duty is 8.4 percent ad valorem and
the quota category is 239.
The babies' training pant is properly classifiable in
subheading 6209.30.3040, HTSUSA, which provides for, babies'
garments and clothing accessories: of synthetic fibers: other:
other: other. The applicable rate of duty is 16.7 percent ad
valorem and the quota category is 239.
The designated textile and apparel category may be
subdivided into parts. If so, visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent negotiations and
changes, we suggest that your client check, close to the time of
shipment, the Status Report on Current Import Quotas (Restraint
Levels), an issuance of the U.S. Customs Service which is updated
weekly and is available at the local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, your client should contact the
local Customs office prior to importing the merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Tariff Classification Appeals Division