CLA-2 OT:RR:CTF:FTM H283468 PJG
Ms. Keira O’Mara
Mama Designs Limited
12 Wychall Lane
Kings Norton
Birmingham
B38 8TA
United Kingdom
RE: Revocation of NY N264127, and HQ 965711; Modification of HQ 088425; Revoked or Modified by Operation of Law; tariff classification of nursing/breast pads
Dear Ms. O’Mara:
On May 11, 2015, U.S. Customs and Border Protection (“CBP”) issued to you New York Ruling Letter (“NY”) N264127. The ruling pertains to the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of nursing/breast pads. We have since reviewed NY N264127 and determined it to be in error. Accordingly, NY N264127 is revoked. Finally, we are also revoking or modifying two additional rulings by operation of law, as discussed below.
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 (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on June 7, 2017, in Volume 51, Number 23, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In NY N264127, the nursing/breast pads were described as follows:
… disc-shaped, washable breast pads that are used to absorb and prevent leakage of breast milk on the bra and clothing of breast feeding mothers. You state the double layered pads are made up of viscose derived from bamboo to absorb the milk. The outer layer is coated with polyurethane to prevent any leakage onto clothing.
In NY N264127, CBP classified the nursing/breast pads under subheading 6307.90.9889, HTSUSA, which provides for “Other made up articles, including dress patterns: Other: Other: Other: Other: Other.”
You also state that the subject merchandise is constructed of knit fabric.
ISSUE:
Whether the subject nursing/breast pads are classifiable in heading 6307, HTSUS, as other made up articles, or 9619, HTSUS, as similar articles to sanitary towels (pads).
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is made in accordance with the General Rules of Interpretation (“GRI”). 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The 2017 HTSUS provisions under consideration are as follows:
6307 Other made up articles, including dress patterns:
* * *
9619.00 Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material:
* * *
Other, of textile materials:
Knitted or crocheted:
* * *
9619.00.64 Of man-made fibers
* * *
Other:
* * *
9619.00.74 Of man-made fibers
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs 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).
The EN to 96.19 states, in pertinent part:
This heading covers sanitary towels (pads) and tampons, napkins (diapers) and napkin liners for babies and similar articles, including absorbent hygienic nursing pads, napkins (diapers) for adults with incontinence and pantyliners, of any material.
In general, the articles of this heading are disposable. Many of these articles are composed of (a) an inner layer (e.g., of nonwovens) designed to wick fluid from the wearer’s skin and thereby prevent chafing; (b) an absorbent core for collecting and storing fluid until the product can be disposed of; and (c) an outer layer (e.g., of plastics) to prevent leakage of fluid from the absorbent core. The articles of this heading are usually shaped so that they may fit snugly to the human body. This heading also includes similar traditional articles made up solely of textile materials, which are usually re-usable following laundering.
This heading does not cover products such as disposable surgical drapes and absorbent pads for hospital beds, operating tables and wheelchairs or non-absorbent nursing pads or other non-absorbent articles (in general, classified according to their constituent material).
Prior to 2012, nursing/breast pads were usually classified in headings based on their material composition. See, e.g., HQ 965746 (Sept. 4, 2002); HQ 965719 (Sept. 3, 2002); HQ 965035 (July 31, 2002); and HQ 965711 (July 24, 2002). In HQ 965711, U.S. Customs stated that in classifying nursing pads, it would “focus … on the material or substance that provides a nursing pad with its absorbent capability” and also consider “the other materials or substances which make-up a particular style of nursing pads.”
In the 2012 Basic Edition of the HTSUS, heading 9619, HTSUS, was introduced to provide for “Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material.” Although this heading does not specifically provide for absorbent nursing/breast pads, the EN 96.19 describes these articles. The subject absorbent nursing/breast pads are articles that include an inner layer designed to wick breast milk from the woman’s skin for the purpose of preventing chafing as well as leakage onto the woman’s clothing. The absorbent core of the subject nursing/breast pads collects and stores the fluid. The outer layer of the subject nursing/breast pads are coated with polyurethane to prevent any leakage onto clothing. The EN indicates that the articles that are classifiable in heading 9619, HTSUS, may be disposable or re-usable. Therefore, it is unnecessary to ascertain whether the subject merchandise is disposable or reusable for purposes of classifying the merchandise in heading 9619, HTSUS.
We conclude that the subject merchandise is classifiable in heading 9619, HTSUS, and specifically under subheading 9619.00.64, HTSUS, which provides for “Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material: Other, of textile materials: Knitted or crocheted: Of man-made fibers.”
As new heading 9619, HTSUS (2012), covers nursing/breast pads, the two pre-2012 rulings that classified nursing/breast pads according to their constituent materials are revoked or modified by operation of law.
HOLDING:
Under the authority of GRIs 1 and 6 the nursing/breast pads are classified in heading 9619, HTSUS, specifically in subheading 9619.00.64, HTSUS, which provides for “Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material: Other, of textile materials: Knitted or crocheted: Of man-made fibers.” The 2017 column one, general rate of duty is 14.9 percent ad valorem.
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 internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N264127, dated May 11, 2015, is REVOKED.
HQ 965711, dated July 24, 2002, is REVOKED by operation of law with regard to the classification of the nursing/breast pads.
HQ 088425, dated May 20, 1991, is MODIFIED by operation of law with regard to the classification of the nursing pads.
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