CLA-2 OT:RR:CTF:TCM H044555 AP
Geoffrey M. Goodale, Esq.
Foley & Lardner L.L.P.
Washington Harbour
3000 K Street, N.W., Suite 500
Washington, D.C. 20007-5143
RE: Classification of pet training pads from China; Revocation of NY N027137
Dear Mr. Goodale:
This is in response to your request, dated July 18, 2008, made on behalf of IRIS U.S.A., Inc., for reconsideration of New York Ruling Letter (“NY”) N027137, issued by U.S. Customs and Border Protection (“CBP”) on May 20, 2008. In NY N027137, we classified pet training pads from China under subheading 6307.90.9889, Harmonized Tariff Schedule of the United States (“HTSUS”). CBP has determined that NY N027137 is incorrect as it applies to the classification of the pet training pads. Therefore, this ruling revokes NY N027137.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY N027137 was published on June 9, 2010, in Volume 44, Number 24, of the Customs Bulletin. CBP received no comments in response to this notice.
FACTS:
The items at issue are identified as pet training pads, which are composed of four layers. In NY N027137, relying on information provided by the requestor, CBP described the merchandise as follows:
[The pet pad is] intended to be used to absorb the excretions of animals, such as dogs, while they are being trained. It measures approximately 171/2’’ x 231/2” and is described as the “Wide” size. You indicate that your client also plans to import a “Square” size (171/2” x 171/2”) and an “Ultra Wide” size (231/2 x 351/2”) . . . You state that the paper pulp and the textile fibers are the materials that provide the absorptive capacity for the pet pads, and that they are equally important in the absorption process. According to the values you have provided, the pulp outweighs the textile fibers in this sheet, but not in the finished product; the textile components are more costly than the pulp.
In response to CBP’s classification of the pet pads in NY N027137 under heading 6307, HTSUS, the requestor provided additional information regarding the construction of the pads and resubmitted a sample.
The pads were analyzed by a CBP laboratory and the lab report issued on September 26, 2008, described the pads as follows:
The white first layer is composed of a nonwoven textile material. The blue second layer is composed of wood pulp fibers.
The white third layer is composed of fluff wood pulp fibers blended with an absorbent polymer (polyacrylamide) in powder form.
The white fourth layer is a polyethylene film.
The fluff pulp in the pad is composed of chemical wood pulp fibers. No binder was found.
According to the information provided by the requestor and CBP analysis, the purpose of the first layer is to keep the surface dry and the purpose of the second layer is to slow down the liquid waste. The third layer, which is composed of the paper pulp, soaks up the liquid waste until the polymers can catch and retain it. The polyethylene film keeps the liquid waste from soaking into the floor.
ISSUE:
Whether the subject pet training pads are classifiable under heading 6307, HTSUS, as “Other made up articles” of textile, under subheading 4818.90.0000, HTSUS, as household, sanitary or hospital articles “of paper pulp,” or under subheading 4823.90.1000, HTSUS, as “other articles of paper pulp.”
LAW AND ANALYSIS:
Classification under the HTSUS is governed by the General Rules of Interpretation (“GRIs”), which need to be applied in numerical order. 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, and, provided such headings or notes do not otherwise require, according to the remaining GRIs taken in order. In other words classification is governed first by the terms of the headings of the tariff schedule and any relative section or chapter notes. The provisions at issue are the following:
4818 Toilet paper and similar paper, cellulose wadding or webs of cellulose fibers, of a kind used for household or sanitary purposes, in rolls of a width not exceeding 36 cm, or cut to size or shape; handkerchiefs, cleansing tissues, towels, tablecloths, table napkins, diapers, tampons, 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:
4818.90.00 Other
* * *
4823 Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers:
4823.90 Other:
4823.90.10 Of paper pulp …..
* * *
6307 Other made up articles, including dress patterns:
6307.90 Other:
* * *
6307.90.98 Other …..
6307.90.9889 Other …..
Because the pads are composed of different materials that are prima facie classifiable in different headings (paper materials under headings 4818 and 4823, HTSUS and textile materials under heading 6307, HTSUS), GRI 3 is implicated. Its relevant portions read as follows:
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 they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The GRIs do not define “essential character” but the ENs suggest a list of factors to consider. In understanding the language of the HTSUS, the Explanatory Notes (“ENs”) may be used. The ENs, even though not dispositive or legally binding, may provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the harmonized system at the international level. CBP believes that ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Explanatory Note VIII to GRI 3(b), page 4, states:
The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
Chapter 63, HTSUS, includes textile articles and Chapter 48, HTSUS, includes paper articles. The subject merchandise is a composite good made of non woven textile material, wood pulp fibers, absorbent polymer, and polyethylene film. The paper pulp, by its nature and role, provides the essential material because it captures the liquid waste and keeps it from spreading until the polymer absorbs the fluid. Although the absorbent polymer has more absorbent capacity and is more expensive, it only supplements the absorbent capacity of a pad, it cannot function without the paper pulp. See HQ 965890 dated November 6, 2002, and HQ 965891 dated November 6, 2002. Fluids are initially captured by the paper pulp and are then absorbed by the polymer. The fluffed pulp is the component that gives the pads their essential character. See HQ 083160 dated April 3, 1989. Accordingly, the pet training pads are classified in Chapter 48, HTSUS, which provides, in pertinent part, for articles of paper pulp, and not in Chapter 63, HTSUS.
Within Chapter 48, the pet pads could be arguably classified under headings 4818, HTSUS or 4823, HTSUS. Heading 4823, HTSUS provides for classification of articles of paper pulp. Heading 4818, HTSUS, in the same chapter, provides, in pertinent part, for diapers and similar household, sanitary or hospital articles of paper pulp. Heading 4818, HTSUS is the eo nomine (e.g., refers to a commodity by a specific name, usually one well-known in commerce) tariff provision for diapers and similar household, sanitary or hospital articles of paper pulp. It is a fundamental rule of tariff classification that an eo nomine tariff provision for an article, such as subheading 4818.90.00, HTSUS, takes precedence over a general or basket type provision such as subheading 4823.90.10, HTSUS. See Clairol, Inc. v. United States, 7 CIT 377, 383 (1984). Heading 4818, HTSUS, in providing for diapers and similar household, sanitary
or hospital articles of paper pulp, is a more specific heading than heading 4823, HTSUS, which provides for a more general description as other articles of paper pulp not elsewhere specified or included. We have previously determined that pet pads are classified in subheading 4818.90.0000, HTSUS. See NY G87966 dated March 20, 2001 and NY L80975 dated December 1, 2004. Accordingly, we conclude that the pet training pads are correctly classified under heading 4818, HTSUS.
HOLDING:
Pursuant to GRIs 1 and 3(b), the pet training pads are classified in heading 4818, HTSUS. Specifically, they are classified in subheading 4818.90.0000, HTSUS, which provides for “Toilet paper and similar paper, cellulose wadding or webs of cellulose fibers, of a kind used for household or sanitary purposes, in rolls of a width not exceeding 36 cm, or cut to size or shape; handkerchiefs, cleansing tissues, towels, tablecloths, table napkins, diapers, tampons, 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: Other.” The general, column one applicable rate of duty is 0 percent ad valorem.
EFFECT ON OTHER RULINGS:
NY N027137, dated May 20, 2008, is REVOKED. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division