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HQ 965890




November 6, 2002

CLA-2 RR:CR:TE 965890 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4818.40.2000
4803.00.4000
4818.90.0000

Ms. Barbara Dawley
Meeks & Sheppard
1735 Post Road
Suite 4
Fairfield, Connecticut
06430

RE: Clarification of HQ 964359 (July 2, 2001); Sanitary Pad; Panty-liner; Clarification of Legal Analysis; General Rule of Interpretation 3 (b); Essential Character; Paper Pulp and Sodium Polyacrylate Polymer Absorbent Components.

Dear Ms. Dawley:

The purpose of this correspondence is to clarify the legal analysis in Headquarters Ruling Letter 964359 (July 2, 2001).

Headquarters Ruling Letter 964359 was issued in response to correspondence from your office dated July 7, 2000. The correspondence requested, on the behalf of your client Johnson & Johnson Consumer Products, a binding classification ruling of both “Novathins” sanitary pads and the absorbent core material of which the sanitary pads are composed.

The Customs Service, subsequent to the issuance of HQ 964359, has had occasion to classify merchandise with substantially similar absorbent components. See HQ 965746 (Sept. 4, 2002). It is the decision of this office that the subheadings into which the articles were classified in HQ 964359 are correct, but the legal reasoning has been reconsidered.

The Customs Service in HQ 964359 concluded that the essential character of the composite goods could not be determined and classified the merchandise pursuant to General Rule of Interpretation 3 (c). Customs in this clarification letter will set forth analysis establishing the essential character of the articles and classifying them in accordance with General Rule of Interpretation 3 (b). Since the holding of HQ 964359 will not change, it is not necessary for Customs to proceed in accordance with 19 U.S.C. 1625 (c).

FACTS

The articles in issue are “Novathin” sanitary pads or panty-liners and the absorbent core material of which the sanitary pads are composed. The merchandise was described in HQ 964359 as follows:

Novathins are thin sanitary pads designed to be worn as panty-liners to absorb menstrual discharges. They are made of absorbent core material consisting of 60% wood pulp and 40% sodium polyacrylate (“SAP”), an absorbent plastic powder. In addition, the pads have a thin layer of adhesive covered by a release paper. The adhesive allows the pad to be affixed as a liner to the inside of a panty when the release paper is removed.

The absorbent core material is a paper stock material used in sanitary products. It is manufactured in Germany using a papermaking process that incorporates paper pulp and sodium polyacrylate. The airformed sheet contains 60% cellulose fibers (wood pulp), and 40% SAP by weight. The relative cost of pulp to SAP is about 1 to 1.7. The material will be imported on jumbo rolls of 54 inches in width or slit to approximately 60 mm and on rolls of approximately 1050 mm in diameter.

ISSUE

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described: (1) “Novathin” sanitary pads; (2) The absorbent core material composed of sixty percent wood pulp and forty percent sodium polyacrylate polymer in fifty-four inch or approximately 137.5 centimeter wide rolls; and (3) The absorbent core material in rolls of approximately sixty millimeters in width ?

LAW AND ANALYSIS

The Customs Service, subsequent to the issuance of HQ 964359, classified nursing pads with substantially similar absorbent core material pursuant to General Rule of Interpretation 3 (b). See HQ 965746. It is Customs determination that the “Novathin” sanitary pads and the absorbent core material, classified pursuant to GRI 3 (c) in HQ 964359, are properly classified pursuant to GRI 3 (b). Since the only purpose of this ruling letter is to clarify that aspect of the analysis addressing GRI 3, no other part of HQ 964359 will be discussed. The Customs Service directs your attention to HQ 964359 for all other classification analysis.

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 Johnson & Johnson’s “Novathin” sanitary pads and the component of the articles’ absorbent core material that affords the articles their essential character is the absorbent paper pulp. The role of the paper pulp, in contrast to the other components, particularly the sodium polyacrylate polymer, is fundamental to the functioning of the merchandise. Although the polyacrylate polymer, if used in equal amounts with the paper pulp, has more absorbent capacity and is 1.7 times more expensive, the sanitary pads cannot function without the paper pulp. The polyacrylate polymer supplements the absorbent capacity of the sanitary pad and the absorbent core material.

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 polyacrylate polymer, provides the sanitary pad and the absorbent core material with their greatest bulk and weight. Counsel for the importer advises Customs that Johnson & Johnson’s “Novathin” sanitary pads and the pads absorbent core material will have a composition of sixty percent paper pulp and forty percent sodium polyacrylate polymer. The paper pulp is the component without which the sanitary pads and the absorbent core material 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).

Johnson & Johnson’s “Novathin” sanitary pad and the pad’s absorbent core material with a paper pulp component that provides absorbent capability and a sodium polyacrylate polymer component that also provides absorbent capability are properly classified pursuant to General Rule of Interpretation 3 (b). In accordance with the analysis set forth above, recourse to GRI 3 (c) is not appropriate.

HOLDING

The Johnson & Johnson Consumer Products “Novathin” sanitary pad is classified in subheading 4818.40.2000, Harmonized Tariff Schedule of the United States Annotated. Subheading 4818.40.2000, HTSUSA, provides for the classification of:

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 and shape; handkerchiefs, cleansing tissues, towels, tablecloths, table napkins, 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: Sanitary napkins and tampons, diapers and diaper liners and similar sanitary articles: Of paper pulp.

The General Column 1 Rate of Duty for subheading 4818.40.2000, HTSUSA, is FREE.

The absorbent core material of the Johnson & Johnson Consumer Products sanitary pad, composed of sixty percent wood pulp and forty percent sodium polyacrylate polymer, in fifty-four inch, approximately 137.5 centimeter, wide rolls, that is rolls exceeding thirty-six centimeters wide, is classified in subheading 4803.00.4000, Harmonized Tariff Schedule of the United States Annotated. Subheading 4803.00.4000, HTSUSA, provides for the classification of:

Toilet or facial tissue stock, towel or napkin stock and similar paper of a kind used for household or sanitary purposes, cellulose wadding and webs of cellulose fibers, whether or not creped, crinkled, embossed, perforated, surface-colored, surface decorated or printed, in rolls or sheets: Other.

The General Column 1 Rate of Duty for subheading 4803.00.4000, HTSUSA, is FREE.

The absorbent core material of the Johnson & Johnson Consumer Products sanitary pad, composed of sixty percent wood pulp and forty percent sodium polyacrylate polymer, in sixty millimeter wide rolls, that is rolls of a width not exceeding thirty-six centimeters, is classified in subheading 4818.90.0000, Harmonized Tariff Schedule of the United States Annotated. Subheading 4818.90.0000, HTSUSA, provides for the classification of:

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, 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: Other.

The General Column 1 Rate of Duty for subheading 4818.90.0000, HTSUSA, is six-tenths (0.6) percent, ad valorem.

The legal reasoning and analysis of Headquarters Ruling Letter 964359 (July 2, 2001), to the extent consistent with this ruling letter, is incorporated by reference. Headquarters Ruling Letter 964359 it attached to and made a part of this ruling letter.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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