OT:RR:CTF:FTM H325601 TJS
Ms. Shirley Murdock Bummis
Inc.
4300 Boulevard St. Laurent, Suite 200
Quebec, H2W 1Z3 Canada
RE: Revocation of NY N244949, NY N237226, NY N212877, NY N189364, NY N051615, NY
N047756, HQ 965891, HQ 962542, NY E85902, and NY E85172; Modification of NY
I89181, NY I83963, HQ 960319, and NY A86147; Revoked or Modified by Operation of Law;
Tariff classification of training pants
Dear Ms. Murdock:
This is in reference to New York Ruling Letter (“NY”) N244949, issued to you on August
26, 2013, concerning the tariff classification of unisex training pants, identified as “Potty Pants”,
under the Harmonized Tariff Schedule of the United States (“HTSUS”). In that ruling, U.S.
Customs and Border Protection (“CBP”) classified the training pants depending on the size, under
either heading 6108, HTSUS, as girls’ garments, or under heading 6111, HTSUS, as babies’
garments. We have since reviewed NY N244949 and determined the classification of the training
pants to be incorrect. Similarly, we have reviewed NY N237226, dated January 17, 2013, and NY
N212877, dated April 25, 2012, and determined them to be in error. It is now CBP’s position that
the training pants that are the subject of NY N244949, NY N237226, and NY N212877 are
classified in heading 9619, HTSUS. For the reasons set forth below, we hereby revoke NY
N244949, NY N237226, and NY N212877.
Finally, we are also revoking or modifying eleven 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 September 11, 2024, in Volume 58, Number 36, of the Customs Bulletin.
No comments were received in response to this notice.
FACTS:
The merchandise in NY N244949 was described as follows:
The submitted sample, “Potty Pants” is a pair of X-large (3-4 years) unisex toddler
training pants. The potty pants will also be imported in toddler size large (2-3
years) and infant sizes small (12-18 months) and medium (18-24 months).
The item resembles panties and is constructed with four layers. The outer layer or
shell has three panels. The middle outer layer panel extends from the front
waistband under the crotch to the rear waistband. The outer shell panel is
constructed of 100% polyester knit interlock fabric laminated with polyester
urethane coating. The side outer shell panels are constructed from the same
material as the outer shell except for the inner laminate coating. There are two
interior layer absorption materials. One absorbent layer is made of 100% cotton
knit terry fabric. The other absorbent layer is made of a 100% knit polyester
microfiber. The interior lining is made of knit fabric that is 40% cotton 60% hemp.
The item features elasticized waistband and leg openings. The essential character
is imparted by the polyester microfiber fabric liner which holds the moisture in.
In NY N244949, CBP classified the “Potty Pants” that were toddler-sized training pants
under heading 6108, HTSUS, and specifically, in subheading 6108.22.90, HTSUS, which provides
for “Women’s or girls’ slips, petticoats, briefs, panties, night dresses, pajamas, negligees,
bathrobes, dressing gowns, and similar articles, knitted or crocheted: Briefs and panties: Of
manmade fibers: Other.” The infant-sized training pants were classified under heading 6111,
HTSUS, and specifically, in subheading 6111.30.50, HTSUS, which provides for “Babies’
garments and clothing accessories, knitted or crocheted: Of synthetic fibers: Other.”
The merchandise in NY N237226 was described as follows:
Style 22747-3TB, Stay Dry Training Pants, is a size 3T unisex training pant. It will
also be available in sizes 2T, 4T and 6. The outershell is constructed of 100% cotton
knit fabric and the lining is constructed of a 100% polyester knit mesh fabric. An
absorbent 75% cotton/25% polyester knit terry fabric with a polyurethane coating
has been inserted between the outershell and the lining. The undergarment features
flatlock stitching at the seams, capped, elasticized leg openings and an enclosed
elasticized waistband. The essential character of the garment is imparted by the
absorbent knit terry fabric.
In NY N237226, CBP classified the training pant under heading 6108, HTSUS, and
specifically, in subheading 6108.21.00, HTSUS, which provides for “Women’s or girls’ slips,
petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar
articles, knitted or crocheted: Briefs and panties: Of cotton.”
The merchandise in NY N212877 was described as follows:
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Style GD303 is a 2T to 4T unisex brief styled training pant. The outer layer is
constructed of 92% cotton and 8% spandex knit jersey fabric. The inner layer is
constructed of a plastic material and a 100% polyester non woven absorbent pad
under a lining at the crotch. The waistband and leg openings are capped and
elasticized and there is a triple adjustable hook and eye closure on each side of the
training pant. The component which imparts the essential character of the garment
is the absorbent non-woven polyester pad.
In NY N212877, CBP classified Style GD303 under heading 6208, HTSUS, and
specifically, in subheading 6208.92.00, HTSUS, which provides for “Women’s or girls’ singlets
and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes,
dressing gowns and similar articles: Other: Of man-made fibers.”
ISSUE:
What is the tariff classification of the training pants at issue under the HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is determined 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 GRI may then be applied.
Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as
classification at the heading level.
The 2024 HTSUS provisions under consideration are as follows:
6108: Women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes,
dressing gowns and similar articles, knitted or crocheted:
Briefs and panties:
6108.21.00 Of cotton…
* * * * *
6111: Babies’ garments and clothing accessories, knitted or crocheted:
6111.30: Of synthetic fibers:
6111.30.50: Other…
* * * * *
6208: Women’s or girls’ singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses,
pajamas, negligees, bathrobes, dressing gowns and similar articles:
Other:
3
6208.92.00: Of man-made fibers…
* * * * *
9619.00: Sanitary pads (towels) and tampons, diapers (napkins), diaper liners and similar articles, of
any material:
Other, of textile materials:
Knitted or crocheted:
9619.00.61: Of cotton…
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:
(a) 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.
(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.
* * * * *
Note 1(u) to Section XI, HTSUS, provides:
1. This section does not cover:
…
(u) Articles of chapter 96 (for example, brushes, travel sets for sewing, slide
fasteners, typewriter ribbons, sanitary pads (towels) and tampons, diapers
(napkins) and diaper liners)
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* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”)
constitute the “official interpretation of the Harmonized System” at the international level. See 54
Fed. Reg. 35127, 35128 (Aug. 23, 1989). While not legally binding nor dispositive, the ENs
“provide a commentary on the scope of each heading of the Harmonized System and are thus useful
in ascertaining the classification of merchandise under the system.” See id.
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.
* * * * *
The EN to heading 96.19 states, in pertinent part:
This heading covers sanitary towels (pads) and tampons, napkins (diapers) and
napkin liners 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
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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 nonabsorbent
nursing pads or other non-absorbent articles (in general, classified according to
their constituent material).
* * * * *
Training pants have historically been classified in Chapter 61 or 62, HTSUS, as articles of
apparel. See, e.g., NY N189364 (Nov. 4, 2011); NY N051615 (Feb. 12, 2009); NY I83963 (July
22, 2002); NY E85902 (Aug. 20, 1999); and NY E85172 (Aug. 20, 1999). However, heading 9619
was introduced into the HTSUS in 2012, providing for “Sanitary towels (pads) and tampons,
diapers and diaper liners for babies and similar articles, of any material.”1 Since Note 1(u) to
Section XI, HTSUS, provides that Section XI, which includes Chapters 61 and 62, HTSUS, does
not cover articles of Chapter 96, HTSUS, we must first consider whether the training pants at issue
are classifiable in Chapter 96, HTSUS.
The training pants at issue are not any of the articles named in heading 9619, HTSUS, (i.e.,
sanitary pads (towels), tampons, diapers (napkins), or diaper liners). The question therefore is
whether the training pants are similar to these named articles. The term “and similar articles”
appearing after a list of articles, invokes the rule of ejusdem generis, which means “of the same
kind.” In tariff classification cases, “ejusdem generis requires that the imported merchandise
possess the essential characteristics or purposes that unite the articles enumerated eo nomine in
order to be classified under the general terms.” Sports Graphics, Inc., v. United States, 24 F.3d
1390, 1392 (Fed. Cir. 1994) (citing Nissho-Iwai Am. Corp. v. United States, 10 Ct. Int’l Trade 154,
157, 641 F. Supp. 808, 810 (1986)).
The EN are informative in understanding what constitutes “similar articles” under heading
9619, HTSUS. The EN for heading 9619, HTSUS, explains that many of the articles in this heading
are composed of three layers: “(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 ENs indicate that heading 9619, HTSUS, provides for
absorbent articles. Furthermore, articles of heading 9619, HTSUS, are usually shaped so that they
may fit snugly to the human body.
We find that the training pants at issue fit the description provided by the EN as articles that
are classifiable in heading 9619, HTSUS. First, all three training pants at issue are composed of
three layers, including, importantly, an absorbent core. The training pants in NY N244949, “Potty
Pants”, are constructed with four layers: an outer shell of 100% polyester knit interlock fabric
laminated with polyester urethane coating, an absorbent layer of 100% cotton knit terry fabric,
another absorbent layer of 100% knit polyester microfiber, and an interior lining of 40% cotton
and 60% hemp knit fabric. The training pants in NY N237226, Style 22747-3TB, consist of an
1
In 2022, the heading description was changed to “Sanitary pads (towels) and tampons, diapers (napkins), diaper liners
and similar articles, of any material.”
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outer shell of 100% cotton knit fabric, an inner lining of 100% polyester knit mesh fabric, and an
absorbent 75% cotton and 25% polyester knit terry fabric with a polyurethane coating
between the lining and outer shell. Lastly, the training pants in NY N212877, Style GD303, consist
of an inner layer of a plastic material, a 100% polyester nonwoven absorbent pad under a lining at
the crotch, and an outer layer of 92% cotton and 8% spandex knit jersey fabric. Furthermore, each
training pants style has an elastic waistband and elastic leg openings which help the product fit
snugly to the wearer. We conclude, therefore, that all three styles are classifiable in heading 9619,
HTSUS, as “similar articles.”
The eight-digit subheadings within heading 9619, HTSUS, are divided according to
material composition. To determine the appropriate subheading for the subject merchandise, GRI
6 refers us to GRI 1 through 5. Since each training pants style is comprised of different materials,
specifically various textiles, the appropriate subheading for the subject merchandise cannot be
determined pursuant to GRI 1. Per 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 more than two subheadings 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.”
In Headquarters Ruling Letter (“HQ”) H271286, dated April 4, 2017, we stated that the
absorbent component is essential for articles of heading 9619, HTSUS. Further, in HQ H301362,
dated April 24, 2019, we confirmed that the essential character of diapers under GRI 3(b) was the
material that absorbs the fluids away from the body, i.e., the absorbent core. More recently, in HQ
H304671, dated March 28, 2022, we held that the essential character of babies’ swimwear of
subheading 9619.00, HTSUS, was based on the absorbent component. Likewise, here, the
absorbent core imparts the essential character of the training pants at issue and the training pants
will therefore be classified at the eight-digit subheading level according to the constituent material
of the absorbent component.
In NY N244949, the absorbent component of “Potty Pants” is a layer of 100% cotton knit
terry fabric and another layer of 100% knit polyester microfiber. NY N244949 determined that the
essential character was imparted by the polyester microfiber fabric liner which holds the moisture
in. Accordingly, we find that the toddler-sized and infant-sized “Potty Pants” are classified in
subheading 9619.00.64, HTSUS, which provides for “Sanitary pads (towels) and tampons, diapers
(napkins), diaper liners and similar articles, of any material: Other, of textile materials: Knitted or
crocheted: Of man-made fibers.”
In NY N237226, the absorbent component of Style 22747-3TB is 75% cotton and 25%
polyester knit terry fabric with a polyurethane coating. The essential character of the training pant
is imparted by the absorbent knit terry fabric, which is predominately of cotton. Therefore, Style
22747-3TB is classified in subheading 9619.00.61, HTSUS, which provides for “Sanitary pads
(towels) and tampons, diapers (napkins), diaper liners and similar articles, of any material: Other,
of textile materials: Knitted or crocheted: Of cotton.”
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In NY N212877, the component that imparts the essential character of Style GD303 is the
absorbent 100% polyester nonwoven pad. Since polyester is a man-made textile material, Style
GD303 is classified in subheading 9619.00.74, HTSUS, which provides for “Sanitary pads (towels)
and tampons, diapers (napkins), diaper liners and similar articles, of any material: Other, of textile
materials: Other: Of man-made fibers.”
For the aforementioned reasons, eleven rulings issued prior to the 2012 establishment of
heading 9619, HTSUS, and concerning substantially similar articles are revoked or modified by
operation of law. The articles in those rulings that are subject to revocation or modification by
operation of law included an absorbent core that imparted the essential character of the articles.
HOLDING:
By application of GRI 1, 3(b), and 6, the “Potty Pants” are classified under heading 9619,
HTSUS, and specifically, in subheading 9619.00.64, HTSUS, which provides for “Sanitary pads
(towels) and tampons, diapers (napkins), diaper liners and similar articles, of any material: Other,
of textile materials: Knitted or crocheted: Of man-made fibers.” The 2024 column one, general
rate of duty is 14.9% ad valorem.
By application of GRI 1, 3(b), and 6, Style 22747-3TB is classified under heading 9619,
HTSUS, and specifically, in subheading 9619.00.61, HTSUS, which provides for “Sanitary pads
(towels) and tampons, diapers (napkins), diaper liners and similar articles, of any material: Other,
of textile materials: Knitted or crocheted: Of cotton.” The 2024 column one, general rate of duty
is 10.8% ad valorem.
By application of GRI 1, 3(b), and 6, Style GD303 is classified under heading 9619,
HTSUS, and specifically, in subheading 9619.00.74, HTSUS, which provides for “Sanitary pads
(towels) and tampons, diapers (napkins), diaper liners and similar articles, of any material: Other,
of textile materials: Other: Of man-made fibers.” The 2024 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 at https://hts.usitc.gov/.
EFFECT ON OTHER RULINGS:
NY N244949, dated August 26, 2013, NY N237226, dated January 17, 2013, and NY N212877,
dated April 25, 2012, are REVOKED.
NY N189364, dated November 4, 2011, NY N051615, dated February 12, 2009, NY
N047756, January 6, 2009, HQ 965891, dated November 6, 2002, HQ 962542, July 9, 2001, NY
E85902, August 20, 1999, and NY E85172, dated August 20, 1999, are REVOKED by operation
of law.
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With respect to the classification of the training pants, NY I89181, dated December 4, 2002,
NY I83963, dated July 22, 2002, HQ 960319, dated September 23, 1997, and NY A86147, dated
August 23, 1996, are MODIFIED by operation of law.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its
publication in the Customs Bulletin.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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