CLA-2 R:C:M 957161 KCC
District Director
U.S. Customs Service
610 South Canal Street
Chicago, IL 60607
RE: IA 50/94; sanitary napkin making machine; GRI 2(a); unassembled; EN Rule 2(a)(V);
8441.80.00; other machinery for making up paper pulp, paper or paperboard; other
machines and mechanical appliances having individual functions, not specified or included
elsewhere in this chapter; EN 84.41; Note 3, Section XVI; composite machine; principal
function; GRI 3(c); TC 431 AS
Dear District Director:
This is in regards to Internal Advice 50/94, initiated by counsel for Personal Products
Company, in a letter to your office dated July 26, 1994, which concerns the tariff classification of
a sanitary napkin making machine under the Harmonized Tariff Schedule of the United States
(HTSUS). Information presented in a meeting on January 25, 1995, and additional information
submitted on February 13, 1995, were taken into consideration in rendering this decision.
FACTS:
The product is a "High Speed Lady Sanitary Napkin Machine" (sanitary napkin machine)
which at the time of entry is unassembled. The machine manufactures a sanitary napkin and
consists of a number of stations, including winder, cutting, pulp processing, and paper adhesive
application units. The manufacturing operation is a continuous process, but can be described in
the following six stages:
Translayer, Bishop and Tissue Unwind
Three sets of rollers simultaneously feed absorbent materials into the production line to
manufacture the absorbent core of the sanitary napkin. One set of winders feeds the
transfer layer or translayer, which is a paper pulp with binder, into the machine. The
translayer is the top layer of the sanitary napkin, but during production is the bottom layer
as the sanitary napkin is manufactured top down. The second and third set of winders
feeds paper materials, i.e., "bishop" and tissue paper, onto rollers which combine the
"bishop" and tissue paper. "Bishop" is an absorbent processed spagnum moss product
which is made from peat moss processed into roll form. "Bishop" acts to "wick" fluids
into the absorbent core. The "bishop" and tissue paper combination is joined with the
translayer to manufacture the absorbent core of the sanitary napkin.
Pulp Application
The absorbent core, now known collectively as the translayer, moves down the main
conveyor to the pulp application stage. The pulp material begins as rigid paperboard and
is ground by a hammermill into fluff-like material. The fluff-like pulp material in roll form
is fed into the sanitary napkin machine and applied on top of the translayer. Because the
sanitary napkin is manufactured upside down, the pulp is actually underneath the
translayer in the completed sanitary napkin.
Transfer Layer Die Cut Station
The translayer with pulp or translayer absorbent core proceeds to the die cut station where
it is cut into the shape of the finished product.
Cover and Poly Unwind
The cut to shape translayer absorbent core proceeds to the cover and poly unwind stage
which is performed simultaneously and consists of encasing the translayer absorbent core.
The polyethylene material is placed on the top side of the translayer absorbent core
(bottom of finished product), and a plastic or nonwoven material perforated with holes is
placed on the bottom of the translayer absorbent core (top of the finished product). The
holes allow liquid to reach the inside translayer absorbent core.
Center and Tab Release Paper Unwind and Adhesive Application
Next, the release paper adhesive center strip and side tabs are added. These release papers
are fed into the machine on rolls and adhered to the designated locations on the top side of
the product (bottom of finished product). The paper is silicon treated adhesive paper
designed to stick to the polyethylene material.
Final Die Cut
The product is cut to shape and excess material is removed. The final product proceeds
down the conveyor through a metal detector to ensure that no metal is in the finished
sanitary napkin and then enters the re-orientation drum where the sanitary napkin is
pivoted 90 degrees in preparation for collation into the following cartoning process.
ISSUE:
Is the sanitary napkin making machine classified as other machinery for making up paper,
paper or paperboard under subheading 8441.80, HTSUS, or as other machines and mechanical
appliances having individual functions, not specified or included elsewhere in this chapter under
subheading 8479.89.95, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is governed by the General Rules of
Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall
be determined according to the terms of the headings and any relative section or chapter notes...."
The competing subheadings are as follows:
8441.80.00 Other machinery for making up paper pulp, paper or paperboard, including cutting
machines of all kinds, and parts thereof...Other machinery.
8479.89.95 Machines and mechanical appliances having individual functions, not specified or
included elsewhere in this chapter; parts thereof...Other machines and mechanical
appliances...Other...Other...Other....
GRI 2(a), HTSUS, states, in pertinent part, that:
Any reference in a heading to an articles shall be taken to include a reference...to that
article complete or finished...entered unassembled or disassembled.
In understanding the language of the HTSUS, the Harmonized Commodity Description
and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not
dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS
and are generally indicative of the proper interpretation of these headings. See, T.D. 89-80, 54
Fed. Reg. 35127, 35128, (August 23, 1989). EN Rule 2(a)(V) (pg. 2), states that:
The second part of Rule 2(a) provides that complete or finished articles presented
unassembled or disassembled are to be classified in the same heading as the assembled
article. When goods are so presented, it is usually for reasons such as requirements for
convenience of packing, handling or transport.
In this case, the sanitary napkin machine is entered unassembled for the convenience of
packing, handling and transport because of its size. Therefore, pursuant to GRI 2(a), HTSUS, the
unassembled sanitary napkin machine is classified in the same heading as the assembled sanitary
napkin machine.
Machines which manufacture sanitary napkins are not specifically described in a heading in
the HTSUS. Counsel for Personal Products contends that the sanitary napkin machine is
classifiable under subheading 8441.80.00, HTSUS, which provides for other machinery for
making up paper, paper or paperboard. EN 84.41 (pgs. 1231-1233), states, in part, that:
This heading covers all machinery used for cutting, and (apart from the book-binding
machinery) all machinery for making up paper pulp, paper or paperboard after it has been
manufactured, ranging from machines for cutting into the widths required or into sheets of
commercial sizes to those for the manufacture of various made up articles...
It should be noted that some machines described above (such as cutting, folding or
bagmaking machines) may also be suitable for use in making up certain plastics or thin
sheet metal. Such machines remain in this heading provided they are of a type normally
used for making up paper or paperboard (emphasis in original).
Additionally, EN 84.41 lists various types of machines which are classifiable under heading 8441,
HTSUS, such as: machines for making envelopes (cutting, folding, lining, etc.); die-cutting
(confetti, labels, lace paper, index cards, window envelopes, box shapes, etc.); cutting, outlining
or grooving paperboard for cartons, boxes, file covers, etc.; composite machines which cut, fold,
interleave and pack cigarette papers; making paper bags; making folding cartons and boxes;
stapling boxes and similar articles; making cartons and boxes; winding machines for manufacture
of paper tubes, spools, sleeves, insulating tubing, cartridge cases, etc.; forming waxed paper cups,
containers; and machines for moulding articles in paper pulp, paper or paperboard (packing for
eggs; plates or dishes for confectionery or camping, toys, etc.). To be classified under heading
8441, HTSUS, machines must be used for "making up paper pulp, paper and paperboard." EN
84.41 states that machines of this heading make up/manufacture articles from previously
manufactured pulp, paper or paperboard.
In this case, pulp, paper, plastic and nonwoven materials are used in the manufacture of
the sanitary napkin. It is our opinion that the inclusion of plastic and nonwoven materials exclude
the sanitary napkin machine from classification under heading 8441, HTSUS. We note that EN
84.41 states that machines of this heading "may also be suitable for use in making up certain
plastics or thin sheet metal. Such machines remain in this heading provided they are of a type
normally used for making up paper or paperboard." We acknowledge that the machines of
heading 8441, HTSUS, may also be suitable for use in making up certain plastics or thin sheet
metal. However, it is our opinion that this language indicates that machines of this heading are
principally used to make up pulp, paper or paperboard as a whole. It is our opinion that machines
which make up plastic and nonwovens, in addition to pulp, paper or paperboard, are not
classifiable under heading 8441, HTSUS.
Counsel contends that since the sanitary napkin is classified as a pulp or paper product
under heading 4818, HTSUS, and that a large percentage of the cost and weight of the sanitary
napkin is attributable to pulp and paper, the machine which makes them must be classifiable as a
machine for making up pulp or paper under heading 8441, HTSUS. We find this argument
unpersuasive. There is no principal in the HTSUS which states that the classification and value
and weight figures of the end product, i.e., the sanitary napkin, determines the classification of the
machine which produces the product. While EN 84.41 list a great variety of equipment for
making up various pulp and paper articles, none of the articles listed are comparable to the
sanitary napkin composed of pulp, paper, nonwoven textile and plastic.
The sanitary napkin machine is composed of six stages which perform several different
functions, i.e., unwinding, fluffing and dispensing pulp (hammermill), die cutting, and applying
adhesive paper. Chapter 84, HTSUS, falls within Section XVI, HTSUS, making the Section XVI
notes applicable to this classification. Note 3, Section XVI, HTSUS, states:
Unless the context otherwise requires, composite machines consisting of two or more
machines fitted together to form a whole and other machines adapted for the purpose of
performing two or more complementary or alternative functions are to be classified as if
consisting only of that component or as being that machine which performs the principal
function.
We are of the opinion that the sanitary napkin machine is a composite machine. However,
we are unable to determine the function which is considered the principal function of the machine.
General EN Section XVI, (VI) MULTI-FUNCTION MACHINES AND COMPOSITE
MACHINES (pgs. 1132-1133) states, in part, that:
Where it is not possible to determine the principal function, and where, as provided in
Note 3 to the Section, the context does not otherwise require, it is necessary to apply
General Interpretative Rule 3(c)....
GRI 3(c), HTSUS, provides that goods "...shall be classified under the heading which
occurs last in numerical order among those which equally merit consideration." The headings
which equally merit consideration are heading 8441, HTSUS (die cutting), and heading 8479,
HTSUS (unwinding, fluffing and dispensing pulp [hammermill], and applying adhesive paper). Of
these headings, heading 8479, HTSUS, occurs last in numerical order. Therefore, the sanitary
napkin machine is classified under subheading 8479.89.95, HTSUS, as other machines and
mechanical appliances having individual functions, not specified or included elsewhere in this
chapter.
Additionally, EN 84.79 (pgs. 1313-1319), states, in part, that heading 8479, HTSUS, is
restricted to machinery having individual functions, which:
(a) Is not excluded from this Chapter by the operation of any Section or Chapter
Note.
and (b) Is not covered more specifically by a heading in any other Chapter of the
Nomenclature.
and (c) Cannot be classified in any other particular heading of this Chapter since:
(i) No other heading covers it by reference to its method of
functioning, description or type.
and (ii) No other heading covers it by reference to its use or to the industry
in which it is employed.
The sanitary napkin machine is not excluded from classification within Chapter 84,
HTSUS, pursuant to Section XVI and Chapter 84, HTSUS, notes and, as stated previously, it is
not more specifically covered by another heading in the HTSUS. Additionally, the sanitary napkin
machine cannot be classified in any other heading of Chapter 84, HTSUS, because no other
heading covers it by reference to its function, description or type, nor by reference to its use or to
the industry in which it is employed. Therefore, the sanitary napkin machine is classified under
subheading 8479.89.95, HTSUS.
We note that classification under subheading 8479.89.95, HTSUS, is consistent with TC
431 AS dated October 9, 1963 (published as abstract position in T.D. 65041(64) on November
14, 1963), in which Customs classified a sanitary napkin machine in item 678.50, Tariff Schedules
of the United States (TSUS)(the precursor tariff provision to subheading 8479.89.95, HTSUS).
We note that Congress has indicated that earlier tariff decisions must not be disregarded in
applying the HTSUS. The conference report to the Omnibus Trade Bill of 1988, stated that "on a
case-by-case basis prior decisions should be considered instructive in interpreting the HTS[US],
particularly where the nomenclature previously interpreted in those decisions remain unchanged
and no dissimilar interpretation is required by the text of the HTS[US]." H. Rep. No. 100-576,
100th cong., 2d Sess. 548, 550 (1988). The subject nomenclature in the TSUS (item 678.50)
and the HTSUS (subheading 8479.89.95) are similar because they both provide for other
machines and mechanical appliances having individual functions, not specified or included
elsewhere. Moreover, the subject nomenclature for machinery for making up pulp, paper or
paperboard in the TSUS (item 668.02) and the HTSUS (subheading 8441.80.00) are similar.
Therefore, we find that TC 431 AS is instructive in this case.
HOLDING:
The sanitary napkin machine is classified under subheading 8479.89.95, HTSUS, as other
machines and mechanical appliances having individual functions, not specified or included
elsewhere in this chapter. The corresponding duty rate for articles classified under this tariff
provision is 3.5% ad valorem.
This decision should be mailed by your office to the internal advice requester no later than
60 days from the date of this letter. On that date the Office of Regulations and Rulings will take
steps to make the decision available to Customs personnel via the Customs Rulings Module in
ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other
public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division