OT:RR:CTF:CPMM H291001 ABL
Lynn Marshal
Hamco, Inc.
P.O. Box 1028
Gonzales, LA 70707
RE: Revocation of NY N243080 and NY N256859; Classification of disposable bibs, changing
pads, and potty toppers.
Dear Ms. Marshal,
This is in reference to the New York Ruling Letter (NY) N243080, issued to you by U.S. Customs and Border Protection (CBP) on December 19, 2013, concerning the classification of sets containing disposable bibs, disposable potty toppers, and disposable changing pads under the Harmonized Tariff Schedule of the United States (HTSUS). We have also reviewed NY N256859, dated September 26, 2014, also issued to you, concerning the classification of adult disposable bibs. We have reviewed these rulings, and determined that they are incorrect. For the reasons set forth below, we are revoking them.
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 HQ H291001 was published on August 5, 2020, in Volume 54, Number 30, of the Customs Bulletin. No comments were received in response to this Notice.
FACTS:
The merchandise described in NY N243080 consists of three combination packs of disposable items packaged for retail sale. The packaging contains two separate compartments. The combination pack is folded in half at a seam and inserted into a separate paperboard packing sleeve. Each of the combination pack’s compartments has a re-sealable flap closure. Each of the three packs contains twelve wet wipes in the bottom compartment. The top compartment of each pack contains either six disposable bibs, six disposable potty toppers or six disposable changing pads of similar construction.
CBP’s Laboratories and Scientific Services Division (“LSSD”) analyzed the samples described in NY N243080 in report numbers NY20131372, NY20131373, and NY20131374, all dated July 10, 2013. LSSD found that the bibs, potty toppers and changing pads were similarly constructed of a top layer of 24 grams per square meter (“gsm”) of polypropylene, a middle layer of 27 gsm of paper, and an outer plastic layer of 25 gsm polyethylene.
ISSUE:
Whether the subject merchandise consisting of sets containing disposable bibs, disposable potty toppers, and disposable changing pads should remain classified in heading 9619, as “sanitary towels (pads)…napkin and napkin liners for babies and similar articles of any material,” or in heading 4818, as articles used for “household or sanitary purposes… 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.”
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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. Goods that are prima facie classifiable under two or more headings are classifiable in accordance with GRI 3. GRI 3(b) provides, in relevant part, that such sets are classified by the component that imparts the essential character of the set. If the essential character cannot be determined, GRI 3(c) provides that the set will be classified in the heading that occurs last in numerical order among those which equally merit consideration. GRI 3(c) applies only where GRI 3(a) and GRI 3(b) fail. See EN to GRI 3.
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 2018 HTSUS provisions under consideration are as follows:
* * * * *
9619 Sanitary towels (pads) and tampons, diapers and diaper liners for babies and similar articles, of any material:
* * * * *
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, bed sheets and similar household, sanitary or hospital articles, articles of apparel and clothing accessories, of paper.
4818.50.00 Articles of apparel and clothing accessories.
4818.90.00 Other.
* * * * *
The EN for Chapter 96 states:
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 panty-liners, 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).
In NY N243080, CBP determined that the combination packs were classified in accordance with GRI 3(c), as neither the wet wipes nor the disposable bibs, disposable potty toppers, or the disposable changing pads imparted the set with its essential character. We agree that classification of the combination packs proceeds under GRI 3(c).
Since the pre-moistened, infused baby wipes are classifiable in heading 3401, HTSUS, the subordination of the baby wipes remains true if the classification of the bibs, changing pads and potty toppers is in heading 4818 instead of in heading 9619, and therefore, the sets in NY N243080, as well as the disposable bibs in NY N256859, are not correctly classified in heading 3401, HTSUS.
Bibs have historically been classified under subheadings which describe apparel and clothing accessories. See HQ 063494, dated March 28, 1989 (finding bibs as “accessories” to garments). Furthermore, numerous rulings have classified paper bibs in heading 4818 HTSUS as paper articles of apparel and clothing accessories. See also NY N153756, dated April 11, 2011 (finding the applicable subheading for the disposable bibs is 4818.50.00, HTSUS; NY 883701, dated March 29, 1993 (finding the applicable subheading for the geriatric and dental bibs, in all sizes, will be 4818.90.00, HTSUS); HQ 084024, dated June 30, 1989 (finding surgical drape made of Dexter Grade 9985Z is classified in subheading 4818.90.00, HTSUS).
However, Heading 9619 was introduced into the HTSUS in 2012, providing for “…diapers and diaper liners for babies and similar articles, of any material” (emphasis added). The term “and similar articles” appearing after a list of articles, invokes the rule of ejusdem generis, explained in Sports Graphics, Inc., v. United States, 24 F.3d 1390, 1392 (Fed. Cir. 1994) thus:
Under the rule of ejusdem generis, which means “of the same kind,” where an enumeration of specific things is followed by a general word or phrase, the general word or phrase is held to refer to things of the same kind as those specified. As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine [by name] in order to be classified under the general terms.
EN 96.19 explains that articles of the heading absorb bodily fluids and fit snuggly to the human body. In HQ H293468, dated July 20, 2017, CBP found that absorbent nursing pads, which are designed to be placed in the brassiere of nursing mothers to absorb excess milk, are classified in heading 9619, HTSUS, as similar articles to those named, following the rule of ejusdem generis using the characteristics listed in EN 9619. Here, disposable bibs, potty toppers and changing pads lack the snug fit of the articles named in the heading. Furthermore, to the extent the disposable bibs absorb fluids at all, they are worn to protect clothing from food or drink, not body fluids. Similarly, potty toppers lay atop the toilet seat and changing pads lay on the changing table. Their main purpose is to keep the toilet seat or changing surface relatively clean, instead of absorbing copious amounts of bodily fluid. Like the flat, disposable surgical drapes and absorbent pads for hospital beds specifically precluded from classification in the heading under EN 96.19, bibs, potty toppers and changing pads are not ejusdem generis with the articles described in heading 9619, HTSUS.
Rather, the bibs, potty toppers and changing pads are composed of three different materials, and are thus composite goods. Paper comprises the highest percentage by weight and the absorption it provides contributes the most important role in relation to the use of the goods. Therefore, the goods at issue are classified in heading 4818, HTSUS, in accordance with GRI 3(b), and all three sets containing them are classified there in accordance with GRI 3(c). Furthermore, the disposable bib in NY N256859, which is also comprised of a middle layer of paper, is classified in heading 4818, HTSUS, under GRI 3(b). Therefore, the sets containing bibs in NY N243080 and the adult bibs in NY N256859 are classified in subheading 4818.50.00, HTSUS, as paper clothing accessories. The sets containing potty toppers and changing pads in NY N243080 are classified in 4818.90.00, HTSUS, as other similar paper articles.
HOLDING:
The sets containing disposable bibs and the adult disposable bibs are classified in 4818.50.00, HTSUS, as articles of apparel and clothing accessories of paper pulp, paper, cellulous wading or webs of cellulose fibers. Additionally, the sets containing disposable potty toppers and changing pads are classified in 4818.90.00, HTSUS, as other articles of paper pulp, paper, cellulous wading or webs of cellulose fibers. The general, column 1 rate of duty for subheadings 4818.50.00 and 4818.90.00, HTSUS, is free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying rates are provided on the internet at www.usitc.gov/tata/hts/.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are to be entered. If the document have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 4818.50.00, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.01, in addition to subheading 4818.50.00, HTSUS, listed above.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 4818.90.00, HTSUS, unless specifically excluded, are subject to an additional 15 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.15, in addition to subheading 4818.90.00, HTSUS, listed above.
The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions, and https://www.cbp.gov/trade/remedies/301-certain-products-china respectively.
EFFECT ON OTHER RULINGS
New York Ruling letter N243080, dated December 19, 2013 and N256859, dated September 26, 2014 are hereby REVOKED in accordance with the above analysis.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN
Sincerely,
for
Craig T. Clark, Director
Commercial and Trade Facilitation Division