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HQ 960319




September 23, 1997
CLA-2 RR:TC:TE 960319 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6111.20.6040; 6209.30.3040

Joseph P. Cox, Esq.
Stein Shostak Shostak & O'Hara
515 South Figueroa Street, Suite 1200
Los Angeles, California 90071-3329

RE: Request for Reconsideration of PD A86147; classification of children's "Diaperaps"; Chapter 61, Note 6(b); Chapter 62, Note 4(b); essential character

Dear Mr.Cox:

This is in response to your letter, dated March 6, 1997, on behalf of your client, Diaperaps, requesting reconsideration of Baltimore Port Decision (PD) A86147, dated August 23, 1996, which classified four waterproof babies' diaper type garments, collectively referred to as "Diaperaps", in headings 6111 and 6209, Harmonized Tariff Schedule of the United States (HTSUS). Samples of the subject garments were submitted for examination.

FACTS:

The four garments are made of 60 percent cotton/40 percent polyester knit fabric laminated to polyurethane and feature:

Lightweight Diaper Cover
A wide band with hook and loop type fasteners at the front waistband for closure. Leak-proof gussets are sewn into the leg openings.

Diaper Protector
A wide band with hook and loop type fasteners at the top of the front of the diaperap and two tabs on each side of the diaperap for closure. Leakproof gussets are sewn into the leg openings.

Training Pant
This garment has the appearance of an underwear "brief" and features a knit cotton lining. An absorbent polyester/rayon panel has been inserted between the lining and the outer shell.

Swim Diaper
This garment has the appearance of an underwear brief and features a knit polyester fabric shell, and elastic which has been sewn into the leg openings and waistband.

The babies' diaper cover, diaper protector and swim diaper were classified in subheading 6111.20.6040, HTSUSA, which provides for, babies' garments and clothing accessories, knitted or crocheted: of cotton: other: other: other: other. The training pant was classified in subheading 6209.30.3040, HTSUSA, which provides for, babies' garments and clothing accessories: of synthetic fibers: other: other: other. In your opinion this classification is incorrect. You propose that the correct classification for the subject merchandise is in heading 3926, HTSUS, which provides for, other articles of plastics and articles of other materials of headings 3901 to 3914. In support of this claim you make reference to:

1. GRI 3(b)- in your opinion the essential character of the subject merchandise is imparted by the polyurethane;

2. HQ 959040, dated September 16, 1996.

ISSUE:

Whether the subject merchandise is properly classified in headings 6111 and 6209, HTSUS, or heading 3926, HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI's will be applied, in the order of their appearance.

Although the subject merchandise is clearly a babies' garment, we must first determine the fabric composition. Heading 5903, HTSUSA, provides for textile fabrics impregnated, coated, covered or laminated with plastics. Note 2(a)(1), Chapter 59, HTSUSA states, in pertinent part:

Heading 5903 applies to:

(a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than:

(1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of color;

(5) Plates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 39);

Previous to making a determination, Customs must initially examine coated fabrics with the naked eye alone. The subject merchandise is composed of a cotton/polyester blend and a polyurethane laminate which is visible to the naked eye. As the fabric meets the standard mandated by Note 2(a)(1) to chapter 59, HTSUSA, that is, that the plastic coating be discernible to the naked eye, the subject merchandise is considered a coated fabric for tariff purposes. Accordingly, as this is a coated fabric which is eo nomine provided for under chapter 59 of the tariff, there is no need to proceed further to a GRI 3(b) essential character determination.

In HQ 959040, dated September 16, 1996, a boys' jacket constructed of cotton knit fabric coated with cellular plastic was classified in heading 3926, HTSUSA. This determination was based on two distinct facts: 1) the textile backing was present merely for reinforcing purposes, that is, to prevent the jacket from stretching and/or tearing and, 2) the jacket was coated with cellular plastic (and not as in this case, compact plastic). As such, the classification of that merchandise in chapter 39, as an article of plastic, was appropriate as per the terms of Note 2(a)(5) to chapter 59.

The subject "Diaperaps" are clearly distinguishable from the merchandise of HQ 959040 in that the textile component serves an equally important function as the plastic laminate. The textile component of the Diaperaps is not merely for reinforcing purposes but enhances the identity of these types of garments. As is indicated on the packaging of the Training Pant, "My soft and comfortable design encourages use. Feels like underwear not bulky diapers." We agree with this statement. The soft fabric found on all these garments combined with attractive prints makes these garments both easy to care for and pleasing to wear for baby. We have already stated that given the eo nomine classification of this merchandise as a laminated fabric, an essential character determination is precluded. However, we bring to your attention that even if our analysis had directed us to an essential character determination under GRI 3(b), the outcome would not have changed in this case. For the lightweight diaper cover, the diaper protector, and the swim diaper, the component which imparts the essential character is the coated fabric. In essence, it is the coated fabric which keeps the moisture in and gives the diaper its commercial value and makes it usable for its intended purpose. Thus, classification in heading 6111, HTSUS, in the provision for "of cotton, knit" would be appropriate for these articles. For the training pant however, the absorbency feature attributed to this article is not in the coated fabric, but in the absorbent polyester/rayon panel that has been inserted between the lining and the outer shell. As such, classification in heading 6209, HTSUS, as "of synthetic fibers, not knit" would also be appropriate.

Accordingly, the appropriate classification for this merchandise is not in heading 3926, HTSUS, but in the provisions for babies' garments in headings 6111 and 6209, HTSUS. This is consistent with numerous Customs decisions on virtually identical merchandise. See, e.g., HQ 959901, dated November 7, 1996; HQ 956260, dated August 18, 1994; HQ 083468, dated September 25, 1989; NY A89238, dated December 3, 1996; NY 858609, dated December 11, 1990; NY 857081, dated October 19, 1990; NY 852513, dated May 24, 1990.

The subject merchandise was properly classified in PD A86147 in headings 6111 and 6209, HTSUS.

HOLDING:

The babies lightweight diaper cover, diaper protector and swim diaper are properly classified in subheading 6111.20.6040, HTSUSA, which provides for, babies' garments and clothing accessories, knitted or crocheted: of cotton: other: other: other. The applicable rate of duty is 8.4 percent ad valorem and the quota category is 239.

The babies' training pant is properly classifiable in subheading 6209.30.3040, HTSUSA, which provides for, babies' garments and clothing accessories: of synthetic fibers: other: other: other. The applicable rate of duty is 16.7 percent ad valorem and the quota category is 239.

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, we suggest that your client 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 the 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, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals Division

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