Request for Reconsideration on classification of Infant's Diaper: PD C82207

HQ 961892 March 26, 1999 CLA-2 RR:TC:TE 961892 ASM CATEGORY: Classification Tariff No.: 6111.20.6040 Mr. Hal Kanefsky A & B Wiper Supply, Inc. 116 Fountain Street Philadelphia, PA 19127 RE: Request for Reconsideration on classification of Infant's Diaper: PD C82207 Dear Mr. Kanefsky: This letter concerns the Request for reconsideration of Customs Dallas/Ft. Worth Texas Port Decision ("PD") C82207, in which you were advised of the classification of infants' diapers under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). FACTS: The subject article is an infant's diaper from Pakistan and is made up of one piece of jersey knit fabric, approximately 17 inches by 24 inches. The item is comprised, in pan, of five interior layers of fabric padding approximately 4 inches wide and running the length of the diaper. These pads are sewn in place by top stitching, midpoint between the left and right diaper sides. The unfolded top and bottom diaper edges are secured in place by overlock or serge stitching. It is our understanding that the diapers are constructed of 100 percent cotton fabric. In PD C82207, issued December 15, 1997, the Customs Dallas/Ft. Worth Texas Port determined that the subject diapers were classified under subheading 6111.20.6040, HTSUSA, which provides for 'Babies' garments and clothing accessories, knitted or crocheted: Of cotton: Other: Other: Other: Other." ISSUE: What is the proper tariff classification for the subject infant diaper under the HTSUSA? LAW AND ANALYSIS:  Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI’s taken in order. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN' s) , which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI' s. You have indicated that the intended market for these products is automotive and janitorial distributors. In addition, you state that the goods are made from rejected material with stains, discoloration, and variances in weight and size. You further offer to provide Customs with evidence of similar packaged products that are found in the automotive sections of department stores and proof that every sale of these items would be for cleaning cars, homes, and offices. In this instance, Customs must look to the article itself rather than the channels of trade to determine the proper classification of these goods under the HTSUSA. Directly on point is the case of Regalia, Inc. V. United States, 16 CIT 407 (1992), which dealt with the classification of garments known as "leggings" where the court affirmed Customs classification of the items as "pants" despite the Plaintiff's claims that the articles were properly classified as "tights" under the HTSUSA. The court in Regaliti stated as follows: The court is not highly persuaded by plaintiff's invoices or advertising calling the items "tights." Thus, while Customs will consider advertising, marketing, merchandising and other factors, we recognize that these factors may at times be misleading and that the most crucial factor in the classification of a garment is the garment itself. The subject infant diapers are, without question, manufactured for use as a diaper. The soft, 100 percent knit cotton, with a seamed multi-layered absorbent center panel is designed for use as an infant diaper and is indistinguishable from that class or kind of reusable cotton cloth diapers to which we believe the subject item belongs. Accordingly, we must classify this product, in its condition as imported, under the provision for "Babies' garments and clothing accessories, knitted or crocheted... "which is classifiable under heading 611 l, HTSUSA. HOLDING: The products identified as infant diapers are classifiable under subheading 6111.20.6040, HTSUSA, which is the provision for 'Babies' garments and clothing accessories, knitted or crocheted: Of cotton: Other: Other: Other: Other.' This provision is dutiable under the general column one rate at 8.4 percent ad valorem. The textile restraint 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 renegotiations 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 internal issuance of the U.S. Customs Service, which is available for inspection 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 importation of this merchandise to determine the current status of any import restraints or requirements. Sincerely, John Durant, Director Commercial Rulings Division