CLA-2-96:OT:RR:NC:4:234

Ms. Michelle Cuevas-Castillo
Ethikos Market
5513 Eric Street
Allendale, MI 49401

RE: The tariff classification of a Cloth Diapering System and Soaker/Booster Pads

Dear Ms. Cuevas-Castillo:

In your letter, dated May 17, 2017, you requested a classification ruling on three items. The request was returned for additional information, which was received by this office on May 30, 2017. Samples were provided for our review and will be retained.

The Nua Baby “Cloth Nappy Set” consists of a cloth diaper shell of 100% polyester with a plastic waterproof lamination. The shell includes adjustable snap closures at the waistline and elasticized gathers at the leg openings. A lining is sewn into the crotch area which creates an open pocket extending from the center-front of the waistband to the center-back of the waistband with a snap at either end to accept an insert. As imported, two absorbent, reusable insert pads are secured, one atop the other, to the shell by the snaps. The larger pad measures approximately 11 inches in length by 5.5 inches in width. The smaller pad measures approximately 9.5 inches in length by 4.25 inches in width. They are constructed of a top facing of 100% polyester fabric over three layers of 80% polyester, 20% nylon knit loop fabric, the inner layers acting as an absorbent core. The layers are sewn together with an overlock stich around the edge. The diaper shell and absorbent pads are designed and constructed to be used together, and neither part could function separately. Together they form a complete diaper. Diapers are classified by the material which provides the greatest absorbency. In this case the polyester/nylon knit loop fabric forming the absorbent core of the pads fulfills this role.

The “Soaker Set” consists of the absorbent pads described in the preceding paragraph packaged separately without the diaper shell. The “Booster/Training Set” consists of two pads, each measuring approximately 14.75 inches in length by 4.25 inches wide, packaged together. The pads are constructed with three layers of absorbent knit loop fabric, 80% polyester and 20% nylon, topped with a layer of fleece-finish 100% polyester. A snap at one end will allow the pad to be attached to a Nua Baby diaper shell. Per your submitted description, the booster pads are intended be used in conjunction with the soaker pads or placed next to the baby’s skin in the diaper shell as a toilet training pad.

In your request you propose classification of the goods in subheading 9619.00.2500, Harmonized Tariff Schedule of the United States, which provides for …diapers and diaper liners for babies and similar articles…Of textile wadding: Other (other than cotton). We find that the inner absorbent core of the insert pads, which also imparts the essential character of the “Cloth Nappy Set,” does not meet the definition of textile wadding, as defined in the Explanatory Notes to the tariff schedule.

The Explanatory Notes constitute the official interpretation of the Harmonized System at the international level. The Explanatory Notes, although neither legally binding nor dispositive of classification issues, do provide commentary on the scope of each heading of the HTSUS. The EN's are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); Lonza, Inc. v. United States, 46 F. 3d 1098, 1109 (Fed. Cir. 1995).

Heading 5601, Harmonized Tariff Schedule, provides for Wadding of textile materials and articles thereof; textile fibres, not exceeding 5 mm in length (flock), textile dust and mill neps. The Explanatory Notes to this heading define textile wadding as follows:

“The wadding referred to here is made by superimposing several layers of carded or airlaid textile fibres one on the other, and then compressing them in order to increase the cohesion of the fibres. Wadding is sometimes lightly punched in order to increase the cohesion of the fibres and, in some cases, to fix the layer of wadding on a support of woven or other textile fabrics.   Wadding takes the form of a flexible, spongy, highbulk sheet, of even thickness, the fibres in which are readily separable. It is generally made of cotton fibres (absorbent or other cotton waddings) or of artificial staple fibres. Lowgrade wadding, made from waste from carding or garnetting, usually contains a proportion of neps or yarn waste.”

The notes to Heading 9619 do not contradict this definition of textile wadding. Furthermore, prior to the 2012 inclusion of Heading 9619 in the tariff schedule, sanitary articles now included in this heading which consisted of an absorbent core of textile wadding were classified in Heading 5601. Therefore it is internally consistent to continue usage of the Heading 5601 definition of textile wadding as applied to the articles of Heading 9619.

The applicable subheading for the Cloth Nappy Set diaper will be 9619.00.4100, HTSUS, which provides for Sanitary towels (pads) and tampons, diaper and diaper liners for babies and similar articles, of any material: Diapers of textile materials: Of synthetic fibers. The general rate of duty will be 16%.

The applicable subheading for the Soaker Set and Booster/Trainer Set will be 9619.00.6400, HTSUS, which provides for Sanitary towels (pads) and tampons, diaper and diaper liners for babies and similar articles, of any material: Other, of textile materials: Knitted or crocheted: Of man-made fibers. The general rate of duty will be 14.9%.

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 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 Charlene Miller at Charlene.Miller@dhs.gov.

Sincerely,

Steven A. Mack
Director
National Commodity Specialist Division