CLA-2 OT:RR:CTF:TCM H186957 LWF
Port Director
U.S. Customs & Border Protection
Port of Pembina
112 West Stutsman Street
Pembina, ND 58871
Attn: Mary Delaquis, Area Port Director
Re: Internal Advice Request; Classification of a reusable textile diaper set for infants
Dear Port Director:
This is in response to a request for internal advice initiated by GHY USA, Inc., on behalf of its client, Eyla’s Imports (“Eyla’s”). At issue is the proper classification under the Harmonized Tariff Schedule of the United States (HTSUS) of the Annie Marie Padorie (“AMP”) “One Size Diaper Kit,” a reusable, textile diaper set for infants (the “Diaper Kit”). The request for internal advice is sought based upon Eyla’s suggested classification of the merchandise under subheading 6111.30.50, HTSUS, which provides for other babies’ garments and clothing accessories, knitted or crocheted of synthetic fibers. U.S. Customs and Border Protection (CBP) Port of Pembina asserts that the Diaper Kit is classified as a set possessing the essential character of the One-size Duo™ diaper, pursuant to General Rule of Interpretation (GRI) 3(b).
FACTS:
The merchandise at issue is identified as the AMP “One Size Diaper Kit” and consists of several cloth components to be used for the purposes of diapering an infant child. The Diaper Kit and its components are packaged together for retail sale and include the following items:
4 One-size Duo™ diapers, 7-38 lbs.: Constructed in Canada of two pieces of fabric sewn together along the edges to create a pocket in which an absorbent diaper insert is secured. The garment consists of an exterior layer from the United States of knit, man-made fabric with a polyurethane laminate applied to the interior side. The interior lining fabric is knit polyester from China.
10 Absorbent hemp diaper inserts: Each absorbent diaper insert consists of two layers of 55 percent hemp, 45 percent cotton knitted fabric from China. The layers are sewn together along the edges with thread made in Canada.
1 Two-layer hemp booster: Consists of two layers of 55 percent hemp, 45 percent cotton knitted fabric from China. The layers are sewn together along the edges with thread made in Canada.
1 Three-layer hemp booster: Consists of three layers of 55 percent hemp, 45 percent cotton knitted fabric from China. The layers are sewn together along the edges with thread made in Canada.
2 Stay-dry liners: Each liner consists of one layer of knit polyester from China.
6 Re-usable hemp wipes: Each wipes consists of one layer of 55 percent hemp, 45 percent cotton knitted fabric from China.
Washing recommendations for the various components are included with the Diaper Kit, and instructions for diapering a child are printed on the side of the box.
ISSUE:
Whether the AMP “One Size Diaper Kit” is classifiable as a set under GRI General Rule of Interpretation 3(b) according to its essential character, or as individual components in their respective headings?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
GRI 3 provides, in relevant part:
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:
…
(b) 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 2011 HTSUS subheadings under consideration are as follows:
6111 Babies’ garments and clothing accessories, knitted or crocheted:
6111.30 Of synthetic fibers:
6111.30.50 Other…
…
6111.90 Of other textile materials:
Of artificial fibers:
6111.90.50 Other…
…
6111.90.90 Other (839)…
* * * * *
6302 Bed linen, table linen, toilet linen and kitchen linen:
Other:
6302.99 Of other textile materials:
6302.99.20 Other (899)…
* * * * *
Note 6 to Chapter 61, HTSUS, provides as follows:
6. For the purposes of heading 6111:
The expression “babies’ garments and clothing accessories” means articles for young children of a body height not exceeding 86 centimeters; it also covers babies’ diapers;
Articles which are, prima facie, classifiable both in heading 6111 and in other headings of this chapter are to be classified in heading 6111.
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 61.11 (2007) provides, in pertinent part, that:
In accordance with Note 6 (a) to this Chapter the expression “babies’ garments and clothing accessories” applies to articles for young children of a body height not exceeding 86 cm. It also covers babies’ napkins. (Emphasis added).
EN 63.02 (2007) provides, in pertinent part, that:
These articles are usually made of cotton or flax, but sometimes also of hemp, ramie or man-made fibres, etc.; they are normally of a kind suitable for laundering. They include:
…
(3) Toilet linen, e.g., hand or face towels (including roller towels), bath towels, beach towels, face cloths and toilet gloves.
* * * * *
GRI 3(b) states that “[g]oods put up in sets for retail sale shall be classified as if they consisted of the material or component which gives them their essential character.” The term “set” as used in GRI 3(b) carries specific meaning and is defined in detail by EN (X) to GRI 3(b). In the instant case, there is no dispute that the Diaper Kit components are classifiable in different headings. The Duo™ diapers and stay-dry liners are appropriately classified in 6111.30.50, HTSUS, which provides for “Babies’ garments and clothing accessories, knitted or crocheted: Of synthetic fibers: Other”; the hemp inserts and hemp boosters are classified in 6111.90.90, HTSUS, which provides for “Babies’ garments and clothing accessories, knitted or crocheted: Of other textile materials: Other (839)”; and the re-usable hemp wipes are classified in 6302.99.20, HTSUS, which provides for “Bed linen, table linen, toilet linen and kitchen linen: Other: Of other textile materials: Other (899).” The Diaper Kit is “put up together” for the particular use or specific activity of providing for the daily diapering of an infant with reusable hemp diaper inserts, and its component pieces are presented in associated quantities such that no single component can be considered imported in bulk. The Diaper Kit is imported in its retail packaging and is suitable for sale directly consumers. The box contains all Diaper Kit components, is printed with decorative and instructional graphics, and contains an informational card for the proper handling and care of the merchandise. As such, the instant merchandise satisfies the description of a “set” provided by EN (X) to GRI 3(b), and we find that the Diaper Kit is accurately classified as a “set” pursuant to GRI 3(b).
For purposes of classification under GRI 3(b), the “essential character” of an article is “that which is indispensable to the structure, core or condition of the article, i.e., what it is.” Structural Industries v. United States, 360 F. Supp. 2d 1330, 1336 (Ct. Int’l Trade 2005). EN VIII to GRI 3(b) explains 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 the constituent material in relation to the use of the goods." Recent court decisions on the essential character for GRI 3(b) purposes have looked primarily to the role of the constituent material in relation to the use of the goods. See Estee Lauder, Inc. v. United States, No. 07-00217, 2012 Ct. Int’l Trade LEXIS 23, *17-18; Structural Industries, 360 F. Supp. 2d 1330; Conair Corp. v. United States, 29 C.I.T. 888 (2005); Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007).
The instant merchandise consists of four diaper covers which can be alternatively fitted with any one of fourteen single-layer, double-layer, or stay dry liners included in the Diaper Kit. Unlike the merchandise considered in New York Ruling Letter (“NY”) N061196, dated May 20, 2009, which consisted of one diaper cover and a single, detachable interior pouch, the instant hemp diaper liners predominate the set by quantity and bulk. Furthermore, regardless of the type of liner selected, the liner is the fabric which provides the absorbency and functionality to the diaper. By contrast, the diaper covers, presented individually, are not functional diapering garments, and the hemp wipes merely serve to assist in cleaning the infant while changing his or her diaper. Therefore, in the condition as imported, the items which impart the essential character of the Diaper Kit are the hemp liners. Consequently, the Diaper Kit is classified under heading 6111, HTSUS. See HQ 959901, dated November 7, 1996; NY E88994, dated December 22, 1999; and see HQ H148716, dated June 1, 2011, (discussing the NAFTA preference eligibility of substantially similar AMP diaper liners classified in heading 6111, HTSUS).
HOLDING:
By application of GRI 3(b), the AMP One-size Diaper Kit is classified in heading 6111, HTSUS (2011), specifically in subheading 6111.90.90, HTSUS, which provides for, “Babies’ garments and clothing accessories, knitted or crocheted: Of other textile materials: Other.” The column one, general rate of duty is 5.6%, ad valorem.
You are to mail this decision to counsel for the internal advice requester no later than sixty days from the date of this decision. At that time, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public, on the CBP Home Page on the World Wide Web at http://www.cbp.gov, by means of the Freedom of Information Act, and other methods of publication.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division