CLA-2 OT:RR:CTF:FTM H283476 PJG
Ms. Kristina Schmitt
NUK - USA
728 Booster Boulevard
Reedsburg, Wisconsin 53959
RE: Revocation of NY N245827, NY N213901, NY J84296, HQ 965723, HQ 965746, HQ 965719, HQ 963488, NY D82853, NY C81609, and HQ 953391; Modification of HQ 965035, and NY 854729; Revoked or Modified by Operation of Law; tariff classification of nursing/breast pads
Dear Ms. Schmitt:
On September 27, 2013, U.S. Customs and Border Protection (“CBP”) issued to you, on behalf of NUK – USA, New York Ruling Letter (“NY”) N245827. The ruling pertains to the tariff classification of reusable nursing pads under the Harmonized Tariff Schedule of the United States (“HTSUS”). We have since reviewed NY N245827 and determined it to be in error. Accordingly, NY N245827 is revoked. We are also revoking one other ruling with substantially similar merchandise: NY N213901, dated May 16, 2012. Finally, we are revoking or modifying ten additional rulings by operation of law, as discussed below.
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. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on June 7, 2017, in Volume 51, Number 23, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In NY N245827, the nursing pads (product number 885131629098) were described as follows:
The nursing pad is faced with 100% woven cotton, the inner lining is non-woven 45% polyester and 55% rayon, and backed with 100% woven polypropylene. The nursing pads are designed to be placed in the brassiere of nursing mothers to absorb excess milk. The reusable nursing pads can be washed for repeated use.
In NY N245827, CBP classified the nursing pads under subheading 6307.90.9889, HTSUSA, which provides for “Other made up articles, including dress patterns: Other: Other: Other: Other: Other.”
ISSUE:
Whether the subject nursing pads are classifiable in heading 6307, HTSUS, as other made up articles, or 9619, HTSUS, as similar articles to sanitary towels (pads).
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) 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.
The 2017 HTSUS provisions under consideration are as follows:
6307 Other made up articles, including dress patterns:
* * *
9619.00 Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material:
* * *
Other, of textile materials:
Knitted or crocheted:
* * *
9619.00.64 Of man-made fibers
* * *
Other:
* * *
9619.00.74 Of man-made fibers
GRI 3(a) and (b) provide as follows:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, 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.
Mixtures, composite goods consisting of different materials or
made up of different components, and goods put up in sets for retail sale, 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 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, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to 96.19 states, in pertinent part:
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 EN to GRI 3(b) states, in pertinent part:
(VI) This second method relates only to :
(i) Mixtures.
(ii) Composite goods consisting of different materials.
(iii) Composite goods consisting of different components.
(iv) Goods put up in sets for retail sales.
It applies only if Rule 3 (a) fails.
(VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(VIII) 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.
(IX) For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.
* * *
Prior to 2012, nursing/breast pads were usually classified in headings based on their material composition. See, e.g., HQ 965746 (Sept. 4, 2002); HQ 965719 (Sept. 3, 2002); HQ 965035 (July 31, 2002); and HQ 965711 (July 24, 2002). In HQ 965711, U.S. Customs stated that in classifying nursing pads, it would “focus … on the material or substance that provides a nursing pad with its absorbent capability” and also consider “the other materials or substances which make-up a particular style of nursing pads.”
In the 2012 Basic Edition of the HTSUS, heading 9619, HTSUS, was introduced to provide for “Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material.” Although this heading does not specifically provide for absorbent nursing/breast pads, the EN 96.19 describes these articles. The subject absorbent nursing pads are articles that include an inner layer designed to wick breast milk from the woman’s skin for the purpose of preventing chafing as well as leakage onto the woman’s clothing. The absorbent core of the subject nursing pads collects and stores the fluid. The subject nursing pads are also faced with 100% woven cotton, which faces the breast and wicks the milk away from the skin, and are backed with 100% woven polypropylene to prevent any leakage onto clothing.
The EN indicates that the articles that are classifiable in heading 9619, HTSUS, may be disposable or re-usable. Therefore, while it is unnecessary to ascertain whether the subject merchandise is disposable or reusable for purposes of classifying the merchandise in heading 9619, HTSUS, we note that the subject reusable nursing pads are not precluded from classification in heading 9619, HTSUS, because of their reusable characteristic. We conclude, therefore, that the subject merchandise is classifiable in heading 9619, HTSUS.
To determine the appropriate subheading for the subject merchandise, GRI 6 refers us to GRI rules 1 through 5. Since the subject nursing pads are faced with 100% woven cotton, the inner lining is non-woven 45% polyester and 55% rayon, and they are backed with 100% woven polypropylene, the appropriate subheading for the subject merchandise cannot be determined pursuant to GRI 1. GRI 2(a) does not provide assistance. In accordance with the guidance provided by GRI 2(b), “[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” Applying GRI 3(a) in the context of the subheading, we find that three subheadings, specifically, subheading 9619.00.71, HTSUS (Of cotton), subheading 9619.00.74 (Of man-made fibers), and subheading 9619.00.90, HTSUS (Other), refer to only part of the materials that comprise the subject merchandise. As such, we refer to GRI 3(b), which states that “[m]ixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, 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.”
Consistent with HQ 965711, we find “that the inner absorbent component … is the component that gives the nursing pad its essential character.” As stated in HQ 965711, “[t]he absorbent component plays the greatest role in the nursing pad, the absorption of excess milk during lactation. It is also the component that provides the nursing pad with its greatest bulk.” Therefore, it is our determination that the essential character of the subject merchandise is the absorbent material, which in this case is comprised of non-woven 45% polyester and 55% rayon. Since the rayon and the polyester are both man-made fibers, it is unnecessary to determine the essential character of the absorbent material. We conclude that the subject nursing pads are classified 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.”
As new heading 9619, HTSUS (2012), covers nursing/breast pads, the ten pre-2012 rulings that classified nursing/breast pads according to their constituent materials are revoked or modified by operation of law.
HOLDING:
Under the authority of GRIs 1, 3(b), and 6 the nursing pads in NY N245827 are classified in heading 9619, HTSUS, specifically 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.” The 2017 column one, general rate of duty is 16 percent 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 N245827, dated September 27, 2013, and NY N213901, dated May 16, 2012, are REVOKED.
NY J84296, dated May 5, 2003, HQ 965723, dated September 18, 2002, HQ 965746, dated September 4, 2002, HQ 965719, dated September 3, 2002, HQ 963488, dated May 2, 2000, NY D82853, dated October 16, 1998, NY C81609, dated November 19, 1997, and HQ 953391, dated April 23, 1993, are REVOKED by operation of law.
HQ 965035, dated July 31, 2002, and NY 854729, dated September 28, 1990, are MODIFIED by operation of law with regard to the classification of the nursing/breast pads.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division