CLA-2 RR:CR:TE 965891 jsj
Mr. Matthew Rinaldi
Director of Finance, Strategic Planning
Arquest, Inc.
101 Interchange Plaza
Cranbury, New Jersey
08512
Re: Clarification of HQ 962542 (July 9, 2001); Disposable Diaper; Training Pants; Clarification of Legal Analysis; General Rule of Interpretation 3 (b); Essential Character; Paper Pulp and Sodium Polyacrylate Polymer Absorbent Components.
Dear Mr. Rinaldi:
The purpose of this correspondence is to clarify the legal analysis in Headquarters Ruling Letter HQ 962542 (July 9, 2001).
Headquarters Ruling Letter 962542 was issued in response to correspondence directed by your office to the Customs Service National Commodity Specialist Division dated December 23, 1998. The correspondence requested, on the behalf of Arquest, Inc., a binding classification ruling of disposable diapers / training pants.
The Customs Service, subsequent to the issuance of HQ 962542, has had occasion to classify merchandise with substantially similar absorbent components. See HQ 965746 (Sept. 4, 2002). It is the decision of this office that the subheading into which the diaper / training pants were classified is correct, but the legal reasoning has been reconsidered.
The Customs Service in HQ 962542 concluded that the essential character of the composite good could not be determined and classified the merchandise pursuant to General Rule of Interpretation 3 (c). Customs in this clarification letter will set forth analysis establishing the essential character of the diaper / training pants and classify it in accordance with General Rule of Interpretation 3 (b). Since the holding of HQ 962542 will not change, it is not necessary for Customs to proceed in accordance with 19 U.S.C. 1625 (c).
FACTS
The article in issue is a disposable diaper / training pants. The merchandise was described in HQ 962542 as follows:
…The diaper/training pant is composed of: a topsheet-thermal bonded polypropylene (standard weight 2.4 grams), a pad composed of a homogeneous blend of fiberized softwood pulp (20.7 grams) and lightly cross linked sodium polyacrylate (8.0 grams), a backsheet consisting of a layer of polyethylene film (2.8 grams) and a layer of spunbond polypropylene (3.0 grams), elastic bands of spandex fibers with polyether soft segment (1.8 grams), glue hot melt resin 3.3 grams) and baking soda (1 gram). The total weight of the product is 43.0 grams.
The diaper/training pant has an elasticized waist and legs and features an animal print. Unlike a traditional disposable diaper having VELCRO® tabs to fasten it together, the two sides are sealed together so that the diaper/training pant can be pulled on and off while standing or sitting.
ISSUE
What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described disposable diaper / training pants in which the absorbent quality is provided by a combination of paper pulp and polyacrylate polymer ?
LAW AND ANALYSIS
The Customs Service, subsequent to the issuance of HQ 962542, classified nursing pads with substantially similar absorbent core material pursuant to General Rule of Interpretation 3 (b). See HQ 965746. It is Customs determination that the Arquest diaper / training pants, classified pursuant to GRI 3 (c) in HQ 962542, are properly classified pursuant to GRI 3 (b). Since the only purpose of this ruling letter is to clarify that aspect of the analysis addressing GRI 3, no other part of HQ 962542 will be discussed. The Customs Service directs your attention to HQ 962542 for all other classification analysis.
General Rule of Interpretation 3(b) provides, in part, that “composite goods…made up of different components…which cannot be classified by reference to 3(a), shall be classified as if they consisted of the …component which gives them their essential character, insofar as this criterion is applicable.” The GRI’s do not provide a definition for the phrase “essential character,” but the EN’s suggest an illustrative list of factors to consider. Explanatory Note Rule 3(b) (VIII) states that the factors that may be relevant to the determination of “essential character” “will vary between different kinds of goods,” but may include the nature of the material or component, its bulk, its quantity, its weight, its value or the role played by the constituent material in relation to the use of the good. General Rules for the Interpretation of the Harmonized System, Rule 3 (b) Explanatory Note (VIII).
It is the determination of the Customs Service that the component of the diaper / training pants that affords the article its essential character is the absorbent paper pulp. The role of the paper pulp, in contrast to the other components, particularly the sodium polyacrylate polymer, is fundamental to the functioning of the merchandise. Although the polyacrylate polymer, if used in equal amounts with the paper pulp, has more absorbent capacity and is more expensive, the diaper / training pants cannot function without the paper pulp. The polyacrylate polymer supplements the absorbent capacity of the diaper / training pants.
Information available to the Customs Service establishes that the paper pulp is essential to the efficient functioning of the polymer. The polyacrylate polymer can only function efficiently in conjunction with the paper pulp. Fluids are initially captured by the paper pulp and then subsequently absorbed by the polymer. Absorbent polymers are capable of absorbing fluids without the involvement of paper pulp, but the paper pulp provides a platform for the polymer to absorb fluids.
The paper pulp, again in contrast to the polyacrylate polymer, provides the diaper / training pants with their greatest bulk and weight. Customs is advised that the diaper / training pants will have a composition of forty-eight percent paper pulp and nineteen percent sodium polyacrylate polymer. The paper pulp is the component without which the diaper / training pants could not efficiently function. See generally HQ 082754 (Nov. 16, 1988) (classifying disposable toddler diaper pants of paper pulp and polyacrylate); NY 886260 (July 7, 1993) (classifying an incontinent pad of pulp and polyacrylate).
The Arquest diaper / training pants with a paper pulp component that provides absorbent capability and a sodium polyacrylate polymer component that also provide absorbent capability are properly classified pursuant to General Rule of Interpretation 3 (b). In accordance with the analysis set forth above, recourse to GRI 3 (c) is not appropriate.
HOLDING
The Arquest, Inc. diaper / training pants are classified in subheading 4818.40.2000, Harmonized Tariff Schedule of the United States Annotated. Subheading 4818.40.2000, HTSUSA, provides for the classification of:
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 and 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: Sanitary napkins and tampons, diapers and diaper liners and similar sanitary articles: Of paper pulp.
The General Column 1 Rate of Duty is FREE.
The legal reasoning and analysis of Headquarters Ruling Letter 962542 (July 9, 2001), to the extent consistent with this ruling letter, is incorporated by reference. Headquarters Ruling Letter 962542 it attached to and made a part of this ruling letter.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division
Enclosure