CLA-2-96:OT:RR:NC:4:434
Mr. Richard Embry
E. Besler & Co.
115 Martin Lane
Elk Grove Village, IL 60007
RE: The tariff classification of disposable adult incontinence underwear from China
Dear Mr. Embry:
In your letter, dated July 22, 2020, you requested a tariff classification ruling on behalf of your client, SVS LLC dba S2S Global, for disposable adult incontinence underwear, including the applicability of subheading 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS). Detailed specifications were submitted for our review.
The product under consideration is essentially a disposable adult diaper, which you refer to as “incontinence underwear” in the ruling request or “adult briefs” in the product literature.
The product is constructed of multiple layers, including a non-woven hydrophobic topsheet; a layer of fluff pulp and super absorbent polymer (SAP) acting as the innermost absorbent core; and a sheet of polypropylene (PP) waterproof film. The product also features gathered leg openings. Per your description, the incontinence underwear has the following composition by weight:
Fluff pulp: 55% Non-woven textiles: 19%
SAP: 15.5% PP film: 6%
Hot melt: 3%
Tissue paper: 1.5% General Rule of Interpretation (GRI) 3 (b) of the HTSUS states 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.
Diapers and similar articles, when composed of more than one material, are generally classified by the material that provides the article its greatest absorbency. In this case, the fluff pulp forming the majority of the absorbent core of the product fulfills this role. The innermost core layer of fluff pulp is indispensable to the function in catching and retaining liquid waste. Further, the layer of fluff pulp exceeds any other component by weight.
You propose classification of the incontinence underwear in subheading 4818.90, HTSUS, which provides for“…handkerchiefs, cleansing tissues, towels, tablecloths, table napkins, bed sheets and similar household, sanitary or hospital articles, articles of apparel and clothing accessories, of paper pulp, paper, cellulose wadding or webs of cellulose fibers.” We disagree. Diapers (including those for adults), and similar articles are more specifically provided for in heading 9619, HTSUS.
The applicable subheading for the adult incontinence underwear/diapers will be 9619.00.1100, HTSUS, which provides for Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material: Of paper pulp. The rate of duty will be Free.
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.
You also inquire whether the product is "specially designed or adapted" for the handicapped within the meaning of the Nairobi Protocol, Annex E, to the Florence Agreement, as codified in the Education, Scientific, and Cultural Materials Act of 1982, and therefore eligible for duty-free treatment under subheading 9817.00.96, HTSUS. The Nairobi Protocol, Annex E, to the Florence Agreement, as codified by the United States Congress as the Education, Scientific, and Cultural Materials Act of 1982 (Pub.L. 97-446, 96 Stat. 2346(1982)) established the duty-free treatment for certain articles for the handicapped. Presidential Proclamation 5978 and Section 1121 of the Omnibus Trade and Competitiveness Act of 1988, provided for the implementation of the Nairobi Protocol into subheadings 9817.00.92, 9817.00.94 and 9817.00.96 of the HTSUS. These tariff provisions specifically state "[a]rticles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons" are eligible for duty-free treatment. U.S. Note 4(a), subchapter XVII, Chapter 98, HTSUS, states that "the term blind or other physically or mentally handicapped persons' includes any person suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities, such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working." It has been previously established that a person suffering from chronic incontinence is "physically handicapped" within the meaning of U.S. Note 4(a), subchapter XVII, Chapter 98 HTSUS (see Headquarters Ruling Letter 085092, dated May 10, 1990, and Headquarters Ruling Letter 085094, dated May 10, 1990).
The articles under consideration in the instant ruling are disposable underwear/diapers. This office must consider whether they are for use by the chronically incontinent vs. acute or transient incontinence.
In Headquarters Ruling Letter (“HRL”) 557529, dated March 8, 1994, Customs determined that a product referred to as an “institutional adult diaper” was eligible for duty-free treatment under subheading 9817.00.96, HTSUS. The product was described as a cotton or polyester shell with a “channel system” that has a disposable insert pad inside it. This product was washable and reusable. The insert pad in this case was not imported and therefore, not at issue. CBP cited to a number of rulings and then stated that “In all of these rulings, it was found that the article under consideration was durable and well constructed and designed for long-term use over a long period of time, as opposed to a disposable incontinent care product.”
The products involved in this case are disposable incontinent care products that are not durable or reusable or designed for long-term use. The requester has not submitted sufficient facts in this case to support a finding that these products are not within the exception for acute or transient disabilities. Accordingly, we find that the requester has not shown that these articles would be more likely to be used by persons with chronic incontinence. Therefore, we find that the adult incontinence underwear/diapers do not satisfy the requirements of duty-free treatment under subheading 9817.00.96, HTSUS.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 9619.00.1100, HTSUS, unless specifically excluded, are subject to an additional 7.5 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, 9903.88.15, in addition to subheading 9619.00.1100, HTSUS, listed above.
The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading.
For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively.
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 [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division