CLA-2 OT:RR:CTF:TCM H271286 TSM
Mr. Matthew Clark
SEKO Customs Brokerage Inc.
1100 Arlington Heights Road
Itasca, IL 60143
RE: Revocation of NY N266884 and NY N266899; Classification of Reusable Diaper Covers.
Dear Mr. Clark:
This letter is in response to your request for reconsideration of New York Ruling Letter (NY) N266884, issued to gDiapers on August 13, 2015, concerning the tariff classification of reusable diaper covers. In that ruling, U.S. Customs and Border Protection (“CBP”) classified the subject merchandise in subheading 9619.00.21, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material: Of textile wadding: Of cotton.” Furthermore, CBP classified the subject detachable interior pouches in subheading 9619.00.05, HTSUS, which provides for “Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material: Of plastics.”
For the reasons set forth below we hereby revoke NY N266884. In addition, we hereby revoke NY N266899, dated August 19, 2015, which classified washable diaper covers in subheading 9619.00.74, HTSUS, which provides for “Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material: Other, of textile materials: Other: Of man-made fibers.”
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 51, No. 6, on February 8, 2017, proposing to revoke NY N266884 and NY N266899, and revoke any treatment accorded to substantially identical transactions. One comment supporting the proposed action was received on March 6, 2017.
The gDiaper system consists of three components. The first component (GD207) is the outer shell, which is made of 92% cotton and 8% spandex jersey knit fabric. The second component (GL100) is a liner which snaps into the outer shell. The liner is made of woven nylon fabric coated with polyurethane. This liner is designed to prevent leakage. The third component is an absorbent insert (GC100). We note that our office received samples of the instant merchandise. The gDiaper system absorbent inserts are made in the United States and sold separately from the outer shell and the liner. Therefore, this ruling letter only addresses the tariff classification of the outer shell and the liner, which are imported together.
What is the tariff classification of the reusable diaper covers and liners at issue under the HTSUS?
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.
GRI 2(b) provides, in pertinent part, that the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. GRI 3 states that, when goods are prima facie classifiable under two or more headings, classification shall be effected as follows:
(a) ...when two or more headings each refer to
part only of the materials or substances
contained in mixed or composite goods…
those headings are to be regarded as
equally specific in relation to those goods,
even if one of them gives a more complete
or precise description of the goods.
(b) Mixtures, composite goods consisting of
different materials or made up of different components,...which cannot be classified by
reference to 3(a), shall be classified as if
they consisted of the material or component
which gives them their essential character,
insofar as this criterion is applicable.
The HTSUS provisions under consideration are as follows:
6111 Babies’ garments and clothing accessories, knitted or crocheted:
6111.20 Of cotton:
* * *
6111.30 Of synthetic fibers:
* * *
9619.00 Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material:
9619.00.05 Of plastics
* * *
Of textile wadding:
9619.00.21 Of cotton
* * *
Diapers of other textile materials:
9619.00.31 Of knitted or crocheted textile fabric
* * *
Babies’ garments and clothing accessories are provided for in heading 6111, HTSUS. Note 1(u) to Section XI, which covers Chapter 61 and heading 6111, HTSUS, provides the following:
This section does not cover:
Articles of chapter 96 (for example, brushes, travel sets for sewing, slide fasteners, typewriter ribbons, sanitary towels (pads) and tampons, napkins (diapers) and napkin liners for babies).
In your submission, you argue that, as composite goods, the diaper outer shells and interior liners (Styles GD207 and GL100) are classified in subheading 9619.00.31, HTSUS, which provides for “Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material: Diapers of other textile materials: Of cotton: Of knitted or crocheted textile fabric.” You allege that the shells and the liners are not classified in subheading 9619.00.21, HTSUS, as “Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material: Of textile wadding: Of cotton,” since neither component of the gDiaper system is made up of wadding.
As referenced above, heading 9619, HTSUS, provides for, among other items, diapers and diaper liners for babies, and similar articles. The term “diapers” is not defined in the HTSUS or ENs. In cases where tariff terms are undefined, they are to be construed in accordance with their common and commercial meanings which are presumed to be the same (Nippon Kogaku, Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380 (1982); see also Nylos Trading Company v. United States, 37 CCPA 71, 73, C.A.D. 423 (1949), and Winter-Wolff, Inc., v. United States, CIT Slip Op. 98-15 (Customs Bulletin and Decisions, March 25, 1998, vol. 32, no. 12, 71, at 74, "When, however, a tariff term is not clearly defined by the statute or its legislative history, it is also fundamental that the correct meaning of the tariff term is ‘presumed to be the same as its common or dictionary meaning in the absence of evidence to the contrary’").
The term "diaper" is defined, in Webster’s NewWorld Dictionary, Second College Edition © 1986, as follows:
diaper – n. kind of ornamented cloth 1. a) org., cloth or fabric with a pattern of repeated small figures, such as diamonds b) a napkin, towel, etc. of such cloth c) such a pattern, as in art 2. A soft, absorbent cloth folded and arranged between the legs and around the waist of a baby.
The Fairchild Dictionary of Textiles, 8th edition, © 2014, defines the term “diaper” as follows:
diaper – (diaper cloth) 1. A soft, absorbent fabric used for diapers or (British usage) baby napkins; it may be made in bird’s-eye weave, plain weave cotton flannel, twill, double plain, or knit. When made of linen in a small diamond pattern, it is called diaper linen.
We note that while the knit fabric and the use of the fabric as being “arranged between the legs and around the waist of a baby” are contemplated by the above definitions, each definition also provides for a certain degree of absorbency.
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 9619, HTSUS, also provides the following:
This heading covers sanitary towels (pads) and tampons, napkins (diapers) and napkin liners for babies and similar articles, including absorbent hygienic nursing pads, napkins (diapers) for adults with incontinence and pantyliners, of any material.
In general, the articles of this heading are disposable. Many of these articles are composed of (a) an inner layer (e.g., of nonwovens) designed to wick fluid from the wearer’s skin and thereby prevent chafing; (b) an absorbent core for collecting and storing fluid until the product can be disposed of; and (c) an outer layer (e.g., of plastics) to prevent leakage of fluid from the absorbent core. The articles of this heading are usually shaped so that they may fit snugly to the human body. This heading also includes similar traditional articles made up solely of textile materials, which are usually re-usable following laundering.
This heading does not cover products such as disposable surgical drapes and absorbent pads for hospital beds, operating tables and wheelchairs or non-absorbent nursing pads or other non-absorbent articles (in general, classified according to their constituent material).
The above definitions of the term “diaper” and pertinent ENs show that heading 9619, HTSUS, provides for absorbent articles. Upon review, we find that the diaper shells and liners at issue are not designed to be absorbent in and of themselves. Effectively, they amount to no more than diaper covers. The component which provides absorbency - the absorbent insert, is made in the United States and not imported with the diaper shells and liners. Therefore, we conclude that the diaper shells and liners (diaper covers) lack the essential absorbent component required for classification in heading 9619, HTSUS. Accordingly, we find that they are not “diapers” of heading 9619, HTSUS, and are not classified in this heading.
As discussed above, the diaper covers at issue consist of the diaper outer shells and liners. The outer shells are always imported with the interior liners, constituting a system. The liner snaps into the outer shell. Both items are dysfunctional and useless if used individually. In this regard, GRI 2(b) states, in pertinent part, that the classification of goods consisting of more than one material or substance shall be made according to the principles of GRI 3.
Upon review, we conclude that the diaper covers at issue are composite goods within the meaning of GRI 3(b), since they consist of two components - the outer shells and the interior liners. Under GRI 3(b), the merchandise must be classified as if it consisted of the component which gives the merchandise its essential character. The term "essential character" is not defined within the HTSUS, GRIs or ENs. However, EN VIII to GRI 3(b) gives guidance, stating that: “[T]he 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 good.”
In Treasury Decision (T.D.) 91-78, effective December 11, 1991, CBP set forth its policy that while linings, interlinings or nonwoven insulating layers do impart desirable and, sometimes, necessary features to garments, it is usually the outer shell which imparts the essential character to the garment because the outer shell normally creates the garment. Accordingly, the classification of the diaper covers is determined by the classification of the outer shells.
Upon review, we find that the diaper shells (composed of 92% cotton and 8% spandex, finished with rib knit fabric), at issue in NY N266884, are knitted babies’ garments. Therefore, we conclude that they are classified in heading 6111, HTSUS, and specifically in subheading 6111.20.60, HTSUS, which provides for “Babies’ garments and clothing accessories, knitted or crocheted: Of Cotton: Other: Other.” See NY N061196, dated May 20, 2009. Since the essential character of the diaper covers (consisting of the diaper shells and liners) is determined by the diaper shells, when imported together with the shells the liners are also classified in subheading 6111.20.60, HTSUS. The diaper covers at issue in NY N266899 are substantially similar, but they are comprised of knitted polyester fabric. Therefore, these diaper covers are classified in subheading 6111.30.50, HTSUS, which provides for “Babies’ garments and clothing accessories, knitted or crocheted: Of synthetic fibers: Other.”
By application of GRIs 1, 3(b) and 6, the diaper covers, consisting of the diaper shells and liners, at issue in NY N266884, are classified in subheading 6111.20.60, HTSUS, which provides for “Babies’ garments and clothing accessories, knitted or crocheted: Of Cotton: Other: Other.” The 2017 column one, general rate of duty is 8.1% ad valorem.
By application of GRIs 1, 3(b) and 6, the diaper covers at issue in NY N266899 are classified in subheading 6111.30.50, HTSUS, which provides for “Babies’ garments and clothing accessories, knitted or crocheted: Of synthetic fibers: Other.” The 2017 column one, general rate of duty is 16% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at.www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N266884, dated August 13, 2015, and NY N266899, dated August 15, 2015, are hereby REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division