CLA-2-96:OT:RR:NC:N4:234

Catherine Lui
Procurement Manager
Parasol Company
1528 Brookhollow Drive, Suite 100
Santa Ana, California 92705

RE: The tariff classification of diapers from Czech Republic.

Dear Ms. Lui:

In your letter dated September 1, 2015, you requested a tariff classification ruling. The New York, Customs and Border Protection (CBP) Laboratory analyzed Diaper A, and has posted a wood pulp fiber content of 55.9%, a textile fabric content of 34.7% and a granular plastic material content of 9.4%. See Headquarters ruling letter HQ 961683 dated August 13, 2002, in which “wood pulp” was categorized as paper.

We note the difference in the CBP lab report compared against the company provided material breakdown. For classification purposes, this office will use the CBP lab report over that of the company provided material breakdown, until proven to the contrary by an independent and certified laboratory source.

This ruling involves two “Midi” size disposable baby diapers. The diapers have latex free elastic leg cuffs and Velcro tabs for securing them in place. The two diapers are marketed for day and overnight use, and can accommodate a baby weighing 10-18 lbs.

Item A is identified as a “Low Fluff Diaper.” The diaper is constructed from Super-absorbent Polymer (SAP), wood pulp (fluff material), core non-woven upper, core non-woven lower, breathable backsheet, frontal tape, non-woven spun top sheet, non-woven cuff, highloft acquisition and distribution layer, non-woven front ear, elastic back ear, tape, lycra and hotmelt type glue.

Item B is identified as the “No Fluff Diaper.” The diaper is constructed of Super-absorbent Polymer (SAP), core non-woven upper, core non-woven lower, breathable backsheet, frontal tape, non-woven spun top sheet, non-woven cuff, highloft acquisition and distribution layer, non-woven front ear, elastic back ear, tape, lycra and hotmelt type glue. This diaper does not contain the fluff material of wood pulp.

Classification under the Harmonized Tariff Schedule of the United States (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.

The Low Fluff Diaper and the No Fluff Diaper are composed of different components (i.e., Low Fluff Diaper: chiefly of paper, textile and plastic, and the No Fluff Diaper: chiefly of textile and plastic with no paper) and are considered “composite goods” for tariff purposes. As such, the merchandise concerned cannot be classified under GRI 1 or GRI 2 to the HTSUS, and is classified under the principle of GRI 3 (b) to the HTSUS.

When interpreting and implementing the Harmonized Tariff Schedule of the United States (HTSUS), the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The Explanatory Notes (ENs) to the Harmonized Tariff Schedule of the United States (HTSUS), GRI 3 (b) (VIII), state that “the factor which determines essential character will vary between different kinds of goods. It may for example, be determined by the nature of the materials or components, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” When the essential character of a composite good can be determined, the whole product is classified as if it consisted only of the material or component that imparts the essential character to the composite good.

Based upon the CBP laboratory findings and consistent with Headquarters ruling letter HQ 965891 dated November 6, 2002, the essential character for Diaper A is imparted by the wood pulp (a/k/a paper pulp), in that the wood pulp provides a platform drawing fluids into, thereby fulfilling a significant part of the functionality of the diaper. It is only afterwards that the polymer further absorb those fluids away from the body. Accordingly, Diaper A is classified in subheading 9619.00.1100 of the HTSUS. As for Diaper B, containing no wood pulp, we are of the opinion that the textile fabric, specifically if having textile wadding, provides a platform drawing fluids into, thereby fulfilling a significant part of the functionality of the diaper. Like Diaper A, it is only afterwards that the polymer further absorb those fluids away from the body. Accordingly, Diaper B is classified in either subheading 9619.00.2100 or 9619.00.2500 of the HTSUS, depending on the nature of the textile fabric employed.

In the event that Diaper B has no textile wadding, we request that you file a new binding ruling identifying the construction of the textile fabric(s), a schematics of the textile fabric(s), and the means by which the diaper draws fluids away from the body.

The applicable subheading for Diaper A will be 9619.00.1100, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Sanitary towels (pad) and tampons, diapers and diaper liners for babies and similar articles, of any material: Of paper pulp.” The rate of duty is free.

The applicable subheading for Diaper B, if textile wadding of cotton, will be 9619.00.2100, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Sanitary towels (pad) and tampons, diapers and diaper liners for babies and similar articles, of any material: Of textile wadding: Of cotton.” The rate of duty will be 3.6% ad valorem.

The applicable subheading for Diaper B, if textile wadding not of cotton, will be 9619.00.2500, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Sanitary towels (pad) and tampons, diapers and diaper liners for babies and similar articles, of any material: Of textile Wadding: Other.” The rate of duty will be 6.3% 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 World Wide Web at https://hts.usitc.gov/current.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Neil H. Levy at [email protected].

Sincerely,

Steven A. Mack
Director
National Commodity Specialist Division