Reconsideration of NY N069000; Classification of a "Potty Topper"; Ruling Correct on Face; New Ruling Based on New Facts

HQ H088400 June 23, 2010 CLA-2 OT:RR:CTF:TCM H088400 JPJ CATEGORY: Classification TARIFF NO.: 4818.40 Ms. Lynn Lo Project Manager Hamco P.O. Box 1028 Gonzales, LA 70707 RE: Reconsideration of NY N069000; Classification of a “Potty Topper”; Ruling Correct on Face; New Ruling Based on New Facts Dear Ms. Lo: This is in reply to your letter dated August 25, 2009, in which you requested reconsideration of NY N069000, which was issued to Hamco on July 24, 2009. FACTS: In NY N069000, the “Potty Topper” was described as follows: The submitted sample is called a “Potty Topper”, a disposable toilet seat cover for children for protection from public toilet seat germs. It is constructed of a non woven textile fabric with a plastic liner on the bottom surface; this construction is considered a textile fabric for tariff purposes. It has adhesive strips on the side to hold the product in place. After importation it will be packaged and offered for retail sale. NY N069000 classified the item in heading 6307, HTSUS, as other made up articles of textile. In your letter dated August 25, 2009, you submitted a sample and new information stating that the material composition of the “Potty Topper” was actually not a non woven textile fabric, but primarily paper pulp. In that letter you state: The potty topper cover is laminated with paper cellulose with a thin polyethylene film to line the backside. There are two adhesive strips on the backside to hold the product in place. The cellulose paper is a polyethylene bi-laminate, consisting of 54% paper pulp, 6% glue (101 latex), and 40% cellulose. The backside liner is 100% polyethylene film. The total weight of 65 grams/sq meter is as follows: Cellulose paper 55 grams/sq meter, polyethylene film 10 grams/sq meter. The “Potty Topper” is designed for one-time use, and is printed with a repetitive pattern on the front. The material is cut to size and shape. Accordingly, we will treat your request for reconsideration as a prospective request for a new ruling pursuant to 19 C.F.R. 177.2. ISSUE: What is the correct classification of the instant “Potty Topper”? LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. The HTSUS provisions under consideration are as follows: 4818 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: 6307 Other made up articles, including dress patterns: The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989). The ENs for Chapter 48, HTSUS, define paper as follows: Paper consists essentially of the cellulosic fibers of the pulp of Chapter 47 felted together in sheet form. Many products, such as certain tea-bag materials, consist of mixture of these cellulose fibers and of textile fibers (in particular man-made fibers as defined in Note 1 to Chapter 54). Where the textile fibers predominate by weight, the products are not regarded as papers and are classified as nonwovens (heading 5603). The EN 48.18, HTSUS, provides, in relevant part, as follows: This heading covers toilet paper and similar paper, cellulose wadding and webs of cellulose fibres, of a kind used for household or sanitary purposes: in strips or rolls of a width not exceeding 36 cm; in rectangular (including square) sheets of which no side exceeds 36 cm in the unfolded state; cut to shape other than rectangular (including square). It also covers household, sanitary or hospital articles, as well as articles of apparel and clothing accessories, of paper pulp, paper, cellulose wadding or webs of cellulose fibres. The goods of this heading are often made from the materials of heading 48.03. Section XI, Note 1(m) which covers heading 6307, HTSUS, states, in relevant part, that “[p]roducts of articles of chapter 48 (for example cellulose wadding);” are not covered by this section. The CBP New York Customs Laboratory report states that the “Potty Topper” has a composition of over 50% of paper fibers, the remaining fibers are rayon, and it is coated with polyethylene. It is also used for household or sanitary purposes and is cut to shape. The “Potty Topper” is described by the ENs to Chapter 48 and meets the terms of heading 4818, HTSUS. It is excluded from heading 6307 HTSUS, by application of Note 1(m) to Section XI. HOLDING: In accordance with GRI 1, the “Potty Topper” is classified in heading 4818, HTSUS, and specifically in subheading 4818.40, HTSUS, as: “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: Sanitary napkins and tampons, diapers and diaper liners and similar sanitary articles.” The 2010 general, column one rate of duty is Free. Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division