CLA-2 RR:CR:TE 965723 jsj
Port Director
U.S. Customs Service
610 South Canal Street
Chicago, Illinois
60607-4523
Re: Application for Further Review of Protest No.: 3901-01-101047; Nursing Pads; Breast Pads; Textile Wadding Absorbent Material; Subheading 5601.10.2000, HTSUSA, HQ 965711 (July 24, 2002) Incorporated by Reference.
Dear Port Director:
The purpose of this correspondence is to address the Application for Further Review of Protest number: 3901-01-101047, dated: June 6, 2001. The Importer and Protesting Party is Gerber Products Company. The Protesting Party is represented by counsel.
Gerber, between the months of April and July of 2000, imported nursing pads in which the absorbent capability is provided by textile wadding. The importer classified the merchandise in subheading 6307.90.99, HTSUS, at the time of entry. Customs reclassified the merchandise and liquidated the entries in subheading 6217.10.95, HTSUS. Subheading 6217.10.95, HTSUS, requires the production of a textile category 659 visa.
Gerber protested Customs classification and filed an Application for Further Review (AFR) that was approved. Gerber’s protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) (West 1999) and 19 C.F.R. 174.12 (e) (2). The Protest was filed within ninety days of the bulletin notice of liquidation of the entries.
This protest decision is being issued subsequent to the following: (1) A review of Gerber’s Protest (Customs Form 19); (2) A review of the Customs Protest and Summons Information Report (Customs Form 6445A); (3) A review of Gerber’s submission dated August 17, 2001, in Customs file number: HQ 964388; (4) An examination of a sample nursing pad in issue in this protest, HQ 964388 and HQ 963488; (5) A review of the classification decisions of the World Customs Organization’s Harmonized System Committee, 26th Session – November 2000; and (6) A meeting conducted at Customs Headquarters on December 19, 2001, between a member of my staff and counsel for Gerber.
The Office of Regulations and Rulings was aware of HQ 963488 (May 2, 2000), issued to the Hong Kong Economic and Trade Office, at the time this protest decision was prepared. Headquarters Ruling Letter 963488 has been revoked in accordance with 19 U.S.C. 1625 (c). Gerber’s entries of substantially similar nursing pads subject to this protest should be liquidated or reliquidated in accordance with this decision.
FACTS
The article in issue, identified as a nursing pad, is designed to be placed in the brassiere of nursing mothers to absorb excess milk. Gerber’s nursing pad is circular, four (4) inches in diameter and composed of three layers. The initial layer, which will come into contact with the brassiere, is composed of 100 percent nonwoven polypropylene fabric. The middle layer, which affords the article its absorbent capability, is composed of 100 percent polyester and rayon wadding. The third layer, which will come into contact with the wearer’s skin, is composed of 100 percent woven cotton fabric.
The Customs Service is advised that the merchandise is manufactured in Hong Kong.
ISSUE
Did the Customs Service properly liquidate Gerber’s entries of nursing pads that have components of nonwoven textile fabric, woven textile fabric and textile wadding, in which the absorbent quality is provided by the textile wadding, in subheading 6217.10.1095, Harmonized Tariff Schedule of the United States Annotated ?
LAW AND ANALYSIS
The Customs Service in Headquarters Ruling Letter 965711 (July 24, 2002) provided classification analysis, at the heading level, for substantially similar nursing pads. Customs, in HQ 965711, discussed the classification of nursing pads with components of textile wadding, woven textile fabric and nonwoven textile fabric, in which the absorbent capability is provided by the textile wadding, and concluded that they should be classified in heading 5601, HTSUS. Heading 5601, HTSUS, provides for the classification of “[w]adding of textile materials and articles thereof; textile fibers, not extending 5 mm in length (flock), textile dust and mill neps.”
The legal reasoning and analysis addressing the classification, at the heading level in heading 5601, HTSUS, of nursing pads for which the absorbent capability is provided by textile wadding, set forth in HQ 965711, is incorporated into this protest decision by reference. Headquarters Ruling Letter 965711 is attached to and made a part of this protest decision.
Continuing the classification of Gerber’s nursing pads, at the subheading level, Gerber’s nursing pads with components of textile wadding, woven textile fabric and nonwoven textile fabric, for which the absorbent capability is provided by textile wadding, are classified in subheading 5601.10.2000, HTSUSA. Subheading 5601.10.2000, HTSUSA, provides for:
5601 Wadding of textile materials and articles thereof; textile fibers, not extending 5 mm in length (flock), textile dust and mill neps:
Sanitary towels and tampons, diapers and diaper liners for babies and similar sanitary articles, of wadding:
Other.
The Customs Service Import Specialist in Chicago classified and liquidated
Gerber’s entries of nursing pads with absorbent textile wadding in subheading 6217.10.95, HTSUS. The reasoning and analysis addressing Customs decision that nursing pads are not clothing accessories and should not be classified in heading 6217, HTSUS, is set forth in HQ 965711.
The importer suggests that its merchandise is properly classified in heading 6307.90.99, HTSUS, as other made up textile articles. Customs, in HQ 965711, addressed the type of nursing pads that are properly classified as other made up articles of heading 6307, HTSUS. The Customs Service directs the importer’s attention to HQ 965711 which is attached to and made a part of this protest decision. The Customs Service notes that resort to heading 6307, HTSUS, a residual provision, should only be had when the classification of merchandise is not provided for more specifically in another heading or elsewhere in the nomenclature. Gerber’s nursing pads, for which the absorbent capability is provided by textile wadding, are more specifically provided for in heading 5601, HTSUS.
HOLDING
The Protest is DENIED, except to the extent reclassification of the merchandise as indicated in this decision results in a partial allowance.
The Gerber nursing pad with components of textile wadding, woven textile fabric and nonwoven textile fabric, in which the absorbent capability is provided by the textile wadding, is classified in subheading 5601.10.2000, Harmonized Tariff Schedule of the United States Annotated.
The General Column 1 Rate of Duty is eight and two-tenths (8.2) percent, ad valorem.
Headquarters Ruling Letter 965711 (July 24, 2002) is incorporated into this protest decision by reference. Headquarters Ruling Letter 965711 is attached to and made a part of this protest decision.
The textile quota category for subheading 5601.10.2000, HTSUSA, is category 669.
There are no applicable quota/visa requirements for products of World Trade Organization (WTO) member-countries. The textile category number above applies to merchandise produced in non-WTO member-countries.
The designated textile and apparel category may be subdivided into parts. If subdivided, the quota and visa requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, to obtain the most current information available, we suggest the importer check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels) an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at the local Customs Service office. The Status Report On Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Web site at www.customs.gov.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, the importer should contact the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
In accordance with Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, section 3 A. (11) (b), you are to mail this decision and the Protest (Customs Form 19) to the Protesant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with this decision must be accomplished prior to mailing the decision.
The Office of Regulations & Rulings will make this decision available to Customs personnel and to the public on the Customs Service Home Page on the
World Wide Web, www.customs.gov, by means of the Freedom of Information Act
and by other methods of public distribution sixty days from the date of this decision.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division
Enclosure