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HQ 965746




September 4, 2002

CLA-2 RR:CR:TE 965746 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4818.40.2000

Mr. James L. Sawyer
Katten Muchin Zavis Rosenman
525 West Monroe Street
Suite 1600
Chicago, Illinois
60661-3693

RE: Nursing Pads; Breast Pads; Gerber’s “New Style” Nursing Pads; Subheading 4818.40.2000, HTSUSA; General Rule of Interpretation 3(b); Essential Character; Paper Pulp and Polyacrylate Polymer Absorbent Components; HQ 965711 (July 24, 2002) Incorporated by Reference.

Dear Mr. Sawyer:

The purpose of this correspondence is to respond to your request dated August 17, 2001. The correspondence in issue requested, on the behalf of your client, Gerber Products Company (Gerber), a binding classification ruling of the merchandise described as Gerber’s “New Style” nursing pads.

This ruling is being issued subsequent to the following: (1) A review of your submissions dated August 17, 2001, and August 12, 2002; (2) An examination of one of Gerber’s “new style” nursing pad; and (3) A meeting conducted at Customs Headquarters on December 19, 2001, between a member of my staff, and counsel for Gerber.

FACTS

The articles in issue are identified by Gerber as its “new style” nursing pads. The Customs Service was not provided a style number or style name.

The nursing pads are conical in shape. They are approximately five (5) inches in diameter, but designed to be form-fitting to the brassiere of the wearer. They are worn by nursing mothers to absorb excess milk.

Gerber’s new style nursing pads are composed of seven layers. The layers are, beginning with the layer closest to the wearer’s skin: (1) A nonwoven fabric; (2) Tissue paper; (3) Absorbent polyacrylate polymer; (4) Paper pulp; (5) Laminated paper; (6) Hot melt; and (7) Silicon paper.

Customs is advised that Gerber will import three variations of its “new style” nursing pad, a light flow pad, a medium flow pad and a heavy flow pad. The three styles will be similarly manufactured, but will have different percentages of paper pulp and absorbent polymer. The nursing pads will have the following compositions, based on weight: Light Flow Pad – 85% Pulp and 15 % Polymer; Medium Flow Pad – 83% Pulp and 17% Polymer; and Heavy Flow Pad – 80% Pulp and 20% Polymer. Counsel for Gerber advised the Customs Service that “the polymer material generally has more absorbent capacity than the pulp and is slightly more expensive per nursing pad.” Submission of Counsel (Aug. 12, 2002).

The Customs Service is advised that the country of manufacture is Japan.

ISSUE

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described “new style” Gerber nursing pads in which the absorbent quality is provided by a combination of paper pulp and polyacrylate polymer ?

LAW AND ANALYSIS

The federal agency responsible for initially interpreting and applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is the U.S. Customs Service.

See 19 U.S.C. 1500 (West 1999) (providing that the Customs Service is responsible for fixing the final appraisement, classification and amount of duty to be paid); See also Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 100-576, at 549 (1988) reprinted in 1988 U.S. Code Cong. and Adm. News 1547, 1582 [hereinafter Joint Explanatory Statement]. The Customs Service, in accordance with its legislative mandate, classifies imported merchandise pursuant to the General Rules of Interpretation (GRI) and the Additional U.S. Rules of Interpretation. See 19 U.S. C. 1202 (West 1999); See generally, What Every Member of The Trade Community Should Know About: Tariff Classification, an Informed Compliance Publication of the Customs Service available on the World Wide Web site of the Customs Service at www.customs.gov, search “Importing & Exporting” and then “U.S. Customs Informed Compliance Publications.”

General Rule of Interpretation 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” General Rule of Interpretation 1. General Rule of Interpretation 1 further states that merchandise which cannot be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation, provided the HTSUSA chapter headings or notes do not require otherwise. According to the Explanatory Notes (EN), the phrase in GRI 1, “provided such headings or notes do not otherwise require,” is intended to “make it quite clear that the terms of the headings and any relative Section or Chapter Notes are paramount.” General Rules for the Interpretation of the Harmonized System, Rule 1, Explanatory Note (V).

The Explanatory Notes constitute the official interpretation of the Harmonized System at the international level. See Joint Explanatory Statement supra note 1, at 549. The Explanatory Notes, although neither legally binding nor dispositive of classification issues, do provide commentary on the scope of each heading of the HTSUS. The EN’s are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); Lonza, Inc. v. United States, 46 F. 3rd 1098, 1109 (Fed. Cir. 1995).

The Customs Service, observing the dictates of GRI 1, to classify merchandise according to the terms of the headings and the section and chapter notes, has encountered significant difficulty in the classification of nursing pads. Nursing pads, as previously explained, are items used by nursing mothers to absorb excess breast milk during lactation. Nursing pads may be used for other purposes, but it is Customs conclusion that any use of nursing pads other than by nursing mothers to absorb excess milk is fugitive.

The difficulty encountered by Customs in classifying this merchandise stems from two facts: (1) Nursing pads are not designated eo nomine in the tariff schedule; and (2) The manufacturers of nursing pads utilize different materials, primarily different absorbent material, to construct their products. Customs commenced the classification of this merchandise with this understanding.

The Customs Service directs your attention to Headquarters Ruling Letter 965711 (July 24, 2002) which provided analysis on the classification of different types of nursing pads and addressed the reasons underlying Customs decision not to classify nursing pads as clothing accessories in heading 6217, HTSUS. The legal reasoning and analysis set forth in HQ 965711 is adopted by reference. Headquarters Ruling Letter 965711 is attached to and incorporated into this ruling letter.

Commencing the classification of Gerber’s “new style” nursing pads composed of nonwoven fabric, tissue paper, polyacrylate polymer, paper pulp, laminated paper, hot melt and silicon paper, the Customs Service, in accordance with General Rule of Interpretation 1, examined the headings and section and chapter notes. A review of the terms of the headings of the HTSUS and the relevant section and chapter notes does not by itself establish a heading into which Gerber’s “new style” nursing pads may properly be classified.

Having determined that General Rule of Interpretation 1 does not resolve this classification matter, the Customs Service reviewed GRI 2. Since Gerber’s “new style” nursing pads are not incomplete, unfinished, unassembled or disassembled articles, GRI 2(a) does not offer assistance. General Rule of Interpretation 2(b) does, however, provide classification guidance.

General Rule of Interpretation 2(b) provides, in part, that “[t]he classification of goods consisting of more than one material or substance shall be classified according to the principles of rule 3.” Since the nursing pads subject to this ruling letter consist of a nonwoven textile fabric, paper and paper pulp, and plastics, it consists of more than one material and resort must be had to GRI 3.

The initial sentence of General Rule of Interpretation 3 provides that “[w]hen, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be” according to GRI 3(a), (b) or (c). The nursing pads subject to this discussion are, prima facie, classifiable under two or more headings. They are classifiable as “made up articles” of heading 6307, HTSUS, because of the nonwoven textile fabric component, as similar sanitary articles of heading 4818, HTSUS, because of their composition of paper and paper pulp and similarity to the eo nomine articles in heading 4818, HTSUS, and as articles of other materials of headings 3901 to 3914 in heading 3926, HTSUS, because of their composition of acrylic polymers of heading 3906, HTSUS.

General Rule of Interpretation 3(a) states that “when two or more headings each refer to part only of the materials or substances contained in mixed or composite goodsthose headings are to be regarded as equally specific in relation to the goods, even if one of them gives a more complete or precise description of the goods.” The Gerber “new style” nursing pads are composite goods See generally General Rules for the Interpretation of the Harmonized System, Rule 3(b) Explanatory Note (IX) (providing, in part, that composite goods include goods made up of different components in which “the components are attached to each other to form a practically inseparable whole.”). and the headings under classification consideration each refer to only part of the materials in the good. Customs will, for that reason, turn to GRI 3(b).

General Rule of Interpretation 3(b) provides, in part, that “composite goodsmade up of different componentswhich 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 Gerber’s “new style” nursing pads that affords the articles their essential character is the absorbent paper pulp. The role of the paper pulp, in contrast to the other components of the nursing pads, is fundamental to the functioning of the nursing pads. Although the polyacrylate polymer, if used in equal amounts with the paper pulp, has more absorbent capacity and is “slightly” more expensive, the nursing pads cannot function without the paper pulp. Counsel for Gerber advises that Gerber manufactures a disposable nursing pad for which the absorbent capability is provided entirely by paper pulp. The polyacrylate polymer supplements the absorbent capacity of the nursing pads.

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 nonwoven textile fabric component and the polyacrylate polymer, provides the nursing pads with their greatest bulk and weight. Counsel for the importer advises Customs that Gerber’s “new style” nursing pads will vary between an 80% paper pulp – 20% polyacrylate polymer and an 85% paper pulp – 15% polyacrylate polymer composition. The paper pulp is the component without which the nursing pads would not have form and 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).

Gerber’s nursing pads with components of nonwoven textile fabrics, components of paper and paper pulp in which the paper pulp provides absorbent capability and components of polyacrylate polymers that also provide absorbent capability are properly classified in heading 4818, HTSUS. Heading 4818, HTSUS, provides for the classification of:

Toilet paper and similar paperof a kind used for household or sanitary purposes;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. (Emphasis added).

Explanatory Note 48.18 provides that heading 4818, HTSUS, addresses the classification of “household, sanitary or other hospital articlesof paper pulp, paper, cellulose wadding or webs of cellulose fibres.” Explanatory Note 44.18. Sanitary articles, in accordance with the definition of “sanitary” in Webster’s New Collegiate Dictionary are articles “of or relating to health.” Webster’s New Collegiate Dictionary, G. & C. Merriam Company (1977). It is the judgment of this office that nursing pads, designed to absorb excess milk from nursing mothers, are sanitary articles for the purposes of the tariff schedule and are similar to diapers and tampons, the sanitary articles designated eo nomine in heading 4818, HTSUS. It is, therefore, Customs determination that Gerber’s “new style” nursing pads are properly classified, pursuant to GRI 3(b), in heading 4818, HTSUS, as a similar sanitary article.

Continuing the classification of Gerber’s “new style” nursing pads, the nursing pads are classified in subheading 4818.40.2000, HTSUSA. Subheading 4818.40.2000, HTSUSA, provides for the classification of:

Sanitary napkins and tampons, diapers and diaper liners and similar sanitary articles:

Of paper pulp.

HOLDING

The Gerber “new style” nursing pads, with components of nonwoven textile fabrics, paper and paper pulp in which the paper pulp provides absorbent capability and polyacrylate polymer that also provides absorbent capability, are classified in subheading 4818.40.2000, Harmonized Tariff Schedule of the United States Annotated.

The General Column 1 Rate of Duty is Free.

Headquarters Ruling Letter 965711 (July 24, 2002) is incorporated into this ruling letter by reference. Headquarters Ruling Letter 965711 is attached to and made a part of this ruling letter.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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