CLA-2 RR:CR:TE 964359 BAS
Barbara Dawley
Meeks & Sheppard
Attorneys at Law
1735 Post Road
Suite 4
Fairfield, Connecticut 06430
RE: Classification of Pantyliners and Absorbent Core Material
Dear Ms. Dawley:
This is in reply to your letter, dated July 7, 2000, on behalf of Johnson & Johnson Consumer Products requesting a ruling on the classification of finished “Novathins” pantyliners and the absorbent core material for those pantyliners. You submitted a sample of the 60 mm slit absorbent core material and a finished Novathin pad.
FACTS:
The merchandise under consideration includes a pantyliner called “Novathin” and the absorbent core material used in the production of that pantyliner. Novathins are thin sanitary pads designed to be worn as pantyliners to absorb menstrual discharges. They are made of absorbent core material consisting of 60% wood pulp and 40% sodium polyacrylate (“SAP”), an absorbent plastic powder. In addition, the pads have a thin layer of adhesive covered by a release paper. The adhesive allows the pad to be affixed as a liner to the inside of a panty when the release paper is removed.
The absorbent core material is a paper stock material used in sanitary products. It is manufactured in Germany using a papermaking process that incorporates paper pulp and sodium polyacrylate. The airformed sheet contains 60% cellulose fibers (wood pulp), and 40% SAP by weight. The relative cost of pulp to SAP is about 1 to 1.7. The material
will be imported on jumbo rolls of 54 inches in width or slit to approximately 60 mm and on rolls of approximately 1050 mm in diameter.
ISSUE:
Whether the Novathins are classifiable under heading 4818, Harmonized Tariff Schedule of the United States Annotated, HTSUSA, as sanitary articles, or under heading 3926, HTSUSA, as other articles of plastics?
Where is the absorbent core material properly classified when imported in jumbo rolls exceeding 36 cm in width or in slit rolls having a width of approximately 60 mm?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). 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 may then be applied.
Novathin pantyliner
As the pantyliner is composed of 60% wood pulp it is described in part by Heading 4818 which provides for inter alia sanitary articles of paper pulp. Having 40% sodium polyacrylate embedded within the absorbent layer, the panty liner is also provided for in part by Heading 3926, HTSUSA, “other articles of plastics and articles of other materials of headings 3901 to 3914.”
General Rule of Interpretation (GRI) 2 (b) directs that goods consisting of more than one material or substance are to be classified according to the principles of GRI 3. GRI 3 (a) provides, in pertinent part, that when two or more headings refer to part only of the materials or substances in a composite good the headings are to be considered equally specific in relation to those goods. This is the case here, therefore GRI 3(b) is applicable.
GRI 3(b), provides that mixtures and composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character. Customs has long held that the primary function of a sanitary napkin or panty liner is to absorb bodily fluids; therefore panty liners have been classified according to the material which provides their absorptive capacity. See NY F80166, dated December 9, 1999; NY E80303, dated April 13, 1999; NY C89541, dated August 27, 1998. Diapers and incontinent pads have also been classified according to the component which provides the absorptive capacity. See HQ 082754, dated November 16, 1988; NY C81557, dated December 16, 1997; NY 886260, dated July 7, 1993.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
Note VIII of the ENs 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. In the instant case, then, the essential character of the pantyliner should be determined by evaluating which material provides the absorptive function of the pad.
Examining the relative weights of the two chief components in the pantyliner, it is clear that the paper pulp which accounts for 60% of the absorbent core material predominates over the SAP which accounts for only 40% of the superabsorbent core material. In terms of value however, the SAP is 1.7 times more costly than the paper pulp fibers. Both the SAP and the pulp absorb fluids but the SAP is also a thickening agent capable of absorbing up to 800 times its own weight in distilled water or 300 times its own weight in tap water. Because of the SAP the removal of the fluid from the surface of the body is unidirectional and irreversible. According to the Customs laboratory, the properties of the SAP are that it starts to absorb and encapsulate water within a few seconds after exposure. The SAP cannot, however, function alone. The fluid must first be captured by the paper pulp in order to be absorbed by the SAP. The SAP is a powdery substance and would not be capable of providing its absorptive function without the paper pulp. While the SAP can absorb liquids on its own, the paper pulp is required to hold the powder in place and act as an “initial reservoir” for the bodily fluids. Accordingly, both the paper pulp and the SAP are necessary components that give the panty liner its essential character.
Having concluded that the two component materials in the Novathin pantyliner are equally essential and that neither one can be designated as imparting the essential character, we must turn to GRI 3(c). [Emphasis added] GRI 3(c) states that when goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. In this case, the Novathin pantyliners are properly classifiable in heading 4818.40.2000, HTSUSA. This holding is consistent with several other rulings classifying sanitary pads or napkins in heading 4818.40.2000. See NY F80166, dated December 9, 1999; NY E80303; dated April 13, 1999; NY C89541, dated August 27, 1998; NY 886260, dated July 7, 1993.
Absorbent Core Material
Like the pantyliner itself the absorbent core material, being composed 60% of wood pulp and 40% of sodium polyacrylate, is classifiable under two or more headings. The importer plans to import the absorbent core material in the following two forms: 1) on jumbo rolls exceeding 36 cm in width and 2) slit to approximately 60 mm in width and wound on rolls of approximately 1050 mm in diameter.
The jumbo rolls described in part by heading 4803 which provides for inter alia paper of a kind used for sanitary purposes (depending on size) and in part by heading 3926, HTSUSA, “other articles of plastics and articles of other materials of headings 3901 to 3914.” The slit rolls are described in part by heading 4818 which provides for inter alia sanitary articles of paper pulp (not exceeding 36 cm) and in part by heading 3926, HTSUSA, “other articles of plastics and articles of other materials of headings 3901 to 3914.” Thus in the case of both the jumbo rolls and the slit rolls, since two or more headings refer to part only of the materials or substances in the absorbent core material, the headings are to be considered equally specific in relation to the good under the principles of GRI 3(a), and therefore GRI 3(b) is applicable.
Under GRI 3(b), the value or essential character of the absorbent core material is to absorb fluid. As in the analysis above, the absorptive capacity of the core material is imparted by both the paper pulp and the SAP. While the paper pulp makes up a greater percentage of the article’s composition (60%), the SAP has a greater absorptive capacity and is also the more costly of the two components. Because the paper pulp must first capture and hold the liquid before the SAP begins to absorb the liquid, pulling it away from the surface, the two components have a synergistic relationship. That is, the SAP needs the paper pulp to act as a reservoir for the fluid prior to absorption. The paper pulp, similarly, could not hold as much fluid without the capability of the SAP to turn it into a gel-like substance and remove moisture from the surface. Because both the paper pulp and the SAP together provide the essential character of the absorbent core material, the analysis must turn to GRI 3 (c) thereby classifying the absorbent core material under the heading which occurs last in numerical order among those which equally merit consideration. Since Chapter 48 is last in numerical order as compared to Chapter 39, the absorbent core material is properly classifiable in Chapter 48.
Additional support for classifying the absorbent core material in Chapter 48, with articles of paper pulp, is provided for in HQ 064310, dated April 1, 1980. In that ruling, issued under the TSUSA, Customs addressed the classification of a similar product. The product in that ruling was an absorbent polymer principally used in the manufacture of absorbent products such as sanitary napkins, disposable diapers and under pads. Laboratory analysis indicated that the sample was composed of wood pulp fibers with a small amount of a starch derivative. The product was manufactured by blending absorbent polymer powder with pulp fibers to form a sheet. In that ruling the ratio of pulp to absorbent powder was not given. It was assumed that the pulp fibers were the component material of chief value, i.e. they exceeded the value of the polymer powder and tissue sheets. The merchandise was therefore classified in item 256.70, the provision for articles of pulp, not specially provided for. Notably the rationale in HQ 064310 differs from that in the instant case but in that ruling the capacity of the absorbent polymers were not addressed. In addition, the ruling does not state that the particular absorbent polymer was in fact sodium polyacrylate. Nonetheless, the ruling provides precedent for classifying a substantially similar absorbent core material in the provision for articles of pulp.
Jumbo Rolls
The absorbent core material when imported on rolls exceeding 36 cm in width are included in heading 4803.00.4000, HTSUSA, which provides for “Toilet or facial tissue stock, towel or napkin stock and similar paper of a kind used for household or sanitary purposes, cellulose wadding and webs of cellulose fibers, whether or not creped, crinkled, embossed, perforated, surface-colored, surface decorated or printed in rolls or sheets: Other.”
Slit Rolls
Note 7 (B) to Chapter 48 states in pertinent part: Headings 4803 and 4809 apply only to paper, cellulose wadding and webs of cellulose fibers:
In strips or rolls of a width exceeding 36 cm; or
In rectangular (including square) sheets with one side exceeding 36 cm and the other side exceeding 15 cm in the unfolded state.
The slit rolls then, having a width of approximately 60mm, are precluded from classification under Heading 4803 and are properly classifiable under Heading 4818.90.0000, HTSUSA, which provides for, “Toilet paper and similar paper, cellulose wadding or webs of cellulose fibers, of a kind used for household or sanitary purposes, in rolls of a width not exceeding 36 cm, or cut to size or shape; handkerchiefs, cleansing tissues, towels, tablecloths, table napkins, diapers, tampons, bed sheets and similar household, sanitary or hospital articles, articles of apparel and clothing accessories of paper pulp, paper, cellulose wadding or webs of cellulose fibers: Other.”
HOLDING:
The Novathin Pantyliners are properly classified in subheading, 4818.40.2000, HTSUSA, which provides for “Toilet paper and similar paper, cellulose wadding or webs of cellulose fibers, of a kind used for household or sanitary purposes, in rolls of a width not exceeding 36 cm, or cut to size or shape; handkerchiefs, cleansing tissues, towels, tablecloths, table napkins, diapers, tampons, bed sheets and similar household, sanitary or hospital articles, articles of apparel and clothing accessories, of paper pulp, paper, cellulose wadding or webs of cellulose fibers; Sanitary napkins and tampons, diapers and diaper liners and similar sanitary articles: Of paper pulp.” The general column one rate of duty is free.
The absorbent core material when imported on rolls exceeding 36 cm in width are properly classifiable in heading 4803.00.4000, HTSUSA, which provides for “Toilet or facial tissue stock, towel or napkin stock and similar paper of a kind used for household or sanitary purposes, cellulose wadding and webs of cellulose fibers…, in rolls or sheets: Other.” The general column one rate of duty is free.
The absorbent core material when imported in slit rolls with a width of approximately 60 mm, are properly classifiable under heading 4818.90.0000, HTSUSA, which provides for, “Toilet paper and similar paper cellulose wadding or webs of cellulose fibers, of a kind used for household or sanitary proposes, in rolls of a width not exceeding 36 cm, or cut to size or shape; handkerchiefs, cleansing tissues, towels, tablecloths, table napkins, diapers, tampons, bed sheets and similar household, sanitary or hospital articles, articles of apparel and clothing accessories, of paper pulp, paper, cellulose wadding or webs of cellulose fibers: Other.” The general column one rate of duty is .9 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division