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HQ 089785


June 5, 1992

CLA-2 CO:R:C:T 089785 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6209.30.3040

Mr. Lawrence R. Pilon
Hodes & Pilon
431 South Dearborn Street, Suite 405
Chicago, IL 60605-1121

RE: DD 862889 affirmed. Diapers; wadding; nonwoven; filler

Dear Mr. Pilon:

This is in reply to your letter of June 19, 1991. That letter concerned the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of diapers, produced in the Philippines. Please reference your client Medline Industries, Inc.

FACTS:

The merchandise at issue consists of reusable hospital infant's diapers. The NIS for children's apparel has examined the sample from your original District Ruling Letter. The shell is nylon knit, and has a transparent vinyl application applied to its outer surface. The lining is woven cotton. The fill is made of a 70% percent polyester, 30% rayon nonwoven material. The diaper has an elasticized waist and leg openings. The diaper will be imported in infants' sizes.

In DD 862889 of May 8, 1991, the District Director, San Francisco, classified this merchandise under subheading 6209.30.3040, HTSUSA, as other babies' garments. You disagree, arguing that the appropriate subheading for this merchandise is 5601.10.2000, HTSUSA, as other articles of textile wadding.

ISSUE:

Whether the instant merchandise is considered infant's clothing or an article of textile wadding under the HTSUSA?

LAW AND ANALYSIS:

Heading 5601, HTSUSA, provides for, inter alia, diapers and diaper liners for babies, of wadding. You argue that, following General Rules of Interpretation 2 and/or 3, the diaper is an article of wadding, and should be classified herein. We disagree. The NIS for articles of wadding, considered by Customs and the Courts to be an expert in this commodity, has, in his examination, determined that the absorbent interior is not composed of wadding, but of a nonwoven material. You were informed of this finding several times prior to the instant ruling letter being issued. Therefore, pursuant to GRI 1, the diaper cannot be classified as an article of wadding.

Heading 6209, HTSUSA, provides for babies' garments and clothing accessories. Infants' diapers are prima facie classifiable herein. Heading 6210, HTSUSA, provides for, inter alia, garments made up of fabrics of heading 5603 (nonwovens). Even assuming, arguendo, that the diapers at issue are "made up of" the nonwoven filler, Notes 4 and 5 to Chapter 62, HTSUSA, specifically require goods prima facie classifiable in both headings to be classified in heading 6209. The holding in DD 862889 was correct, and is therefore affirmed.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 6209.30.3040, HTSUSA, textile category 239, as babies' garments and clothing accessories, of synthetic fibers, other, other, other. The applicable rate of duty is 17 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota 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 that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director
Commercial Rulings Division?

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