CLA-2 RR:CR:TE 965719 jsj
U.S. Customs Service
6747 Engle Road
Middleburg, Heights, Ohio
Attention: Team 332
Re: Application for Further Review of Protest No.: 4101-01-100559;Nursing Pads; Breast Pads; Woven Absorbent Material; Subheading 6307.90.9989, HTSUSA (2001); HQ 965711 (July 24, 2002) Incorporated by Reference.
Dear Port Director:
The purpose of this correspondence is to address the Application for Further Review of Protest Number: 4101-01-100559, dated November 29, 2001. The Importer of Record and Protesting Party is Abbott Laboratories, Ross Products Division.
The Customs Service issued a Notice of Action (Customs Form 29) to Abbott Laboratories. The Notice of Action is dated August 1, 2001. It indicated that a rate advance had been taken on the relevant entry based on the conclusion that the Importer had not properly classified nursing pads from China. The merchandise was entered in the year 2001 and was liquidated on August 31, 2001. The Importer, subsequent to the liquidation, filed a protest challenging the classification decision of the Port Director.
A review of the Protest (Customs Form 19) and the Customs Protest and Summons Information Report (Customs Form 6445) indicates that the protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) (West 1999) and 19 C.F.R. 174.12 (e)(2).
This protest decision is being issued subsequent to a review of the following: (1) The Protest filed on the behalf of Abbott Laboratories; (2) The Protest Section II: Reasons for Protest, that accompanied the Protest; (3) The Notice of Action; (4) The Customs Protest and Summons Information Report; (5) The submission of counsel dated: August 22, 2002, and (6) An examination of two sample packages of identical nursing pads.
The article in issue is a nursing pad. It is designed to be placed in the brassiere of nursing mothers to absorb excess milk. The Ross Products Division, Abbott Laboratories nursing pad is designated style 14191K, product number: 70074 54076.
The nursing pad is conical in shape, but slightly longer than it is wide. The article is five and five-eighths (5 5/8) inches from top to bottom and approximately four and one-half (4 ½) inches across.
The nursing pad has four layers of fabric. The initial layer, that which will be closest to the skin of the wearer, is composed of a one hundred percent polyester knit jacquard fabric. The second and third fabric layers, those designed to provide the nursing pad with its absorbent capacity, are composed of woven, sixty-five percent polyester, thirty-five percent cotton blend fabrics. The fourth layer, that which will be closest to the brassiere of the wearer, is composed of a woven nylon fabric with an acrylic coating on one side.
Did the Customs Service properly liquidate the entry of the above-described nursing pad composed of woven nylon fabric coated with acrylic, knitted polyester fabric and two inner layers of woven polyester – cotton blend fabric which provide the article with its absorbent capacity, classifying the article, pursuant to the Harmonized Tariff Schedule of the United States Annotated, in subheading 6217.10.9519, HTSUSA?
LAW AND ANALYSIS
The Customs Service in Headquarters Ruling Letter 965711 (July 24, 2002) provided classification analysis, at the heading level, for a substantially similar nursing pad. Customs, in HQ 965711, discussed the classification, at the heading level, of a nursing pad with woven and nonwoven fabric components, in which the absorbent capability is provided by a nonwoven fabric component. The Customs Service concluded that the nursing pad should be classified in heading 6307, HTSUS. Heading 6307, HTSUS, a residual or basket provision, provides for the classification of “[o]ther made up articles, including dress patterns.”
The Customs Service is cognizant that HQ 965711 did not address the classification of nursing pads with a knit textile fabric component, as is the instant case, in which the knit textile fabric component did not afford the article its absorbent capability. The reasoning and analysis applied in HQ 965711 regarding nursing pads with woven and nonwoven textile fabric components in which those components did not provide the nursing pads with their absorbent capability is, however, equally analogous.
The legal reasoning and analysis addressing the classification, at the heading level, in heading 6307, HTSUS, of substantially similar nursing pads composed of woven and nonwoven textile fabric components set forth in HQ 965711 is incorporated into this ruling letter by reference. Headquarters Ruling Letter 965711 is attached to and made a part of this ruling letter.
Continuing the classification of Abbott Laboratory’s nursing pad, at the subheading level, the nursing pad composed of woven nylon fabric coated with acrylic, knitted polyester fabric and two inner layers of woven polyester – cotton blend fabric which provide the article with its absorbent capacity, is classified in subheading 6307.90.9989, HTSUSA, (2001) Subheading 6307.90.9989, HTSUSA, (2001) provides for:
Other made up articles, including dress patterns:
The protest is GRANTED.
The Abbott Laboratories, Ross Products Division nursing pad composed of woven nylon fabric coated with acrylic, knitted polyester fabric and two inner layers of woven sixty-five percent polyester, thirty-five percent cotton fabric which provides the article with its absorbent capacity, is classified in subheading 6307.90.9989, Harmonized Tariff Schedule of the United States Annotated (2001).
The General Column 1 Rate of Duty for subheading 6307.90.9989, HTSUSA, (2001) is seven (7) percent, ad valorem.
The legal reasoning and analysis of Headquarters Ruling Letter 965711 (July 24, 2002) is incorporated by reference. Headquarters Ruling Letter 965711 is attached to and made a part of this ruling letter.
In accordance with Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, section 3 A. (11) (b), you are to mail this decision and the Protest (Customs Form 19) to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with this decision must be accomplished prior to mailing the decision.
The Office of Regulations & Rulings will make this decision available to Customs personnel and to the public on the Customs Service Home Page on the World Wide Web, www.customs.gov, by means of the Freedom of Information Act
and by other methods of public distribution sixty days from the date of this decision.
Myles B. Harmon, Acting Director
Commercial Rulings Division