HQ 965723

September 18, 2002

# CLA-2 RR:CR:TE 965723 jsj

CATEGORY: Classification

TARIFF NO.: 5601.10.2000

Port Director

U.S. Customs Service

610 South Canal Street

Chicago, Illinois

60607-4523

Re: Application for Further Review of Protest No.: 3901-01-101047;
Nursing Pads; Breast Pads; Textile Wadding Absorbent Material;
Subheading 5601.10.2000, HTSUSA, HQ 965711 (July 24, 2002) Incorporated
by Reference.

Dear Port Director:

The purpose of this correspondence is to address the Application for
Further Review of Protest number: 3901-01-101047, dated: June 6, 2001.
The Importer and Protesting Party is Gerber Products Company. The
Protesting Party is represented by counsel.

Gerber, between the months of April and July of 2000, imported nursing
pads in which the absorbent capability is provided by textile wadding.
The importer classified the merchandise in subheading 6307.90.99, HTSUS,
at the time of entry. Customs reclassified the merchandise and
liquidated the entries in subheading 6217.10.95, HTSUS. Subheading
6217.10.95, HTSUS, requires the production of a textile category 659
visa.

Gerber protested Customs classification and filed an Application for
Further Review (AFR) that was approved. Gerber's protest was timely
filed pursuant to 19 U.S.C. 1514 (c)(3) (West 1999) and 19 C.F.R. 174.12
(e) (2). The Protest was filed within ninety days of the bulletin notice
of liquidation of the entries.

This protest decision is being issued subsequent to the following: (1) A
review of Gerber's Protest (Customs Form 19); (2) A review of the
Customs Protest and Summons Information Report (Customs Form 6445A); (3)
A review of Gerber's submission dated August 17, 2001, in Customs file
number: HQ 964388; (4) An examination of a sample nursing pad in issue
in this protest, HQ 964388 and HQ 963488; (5) A review of the
classification decisions of the World Customs Organization's Harmonized
System Committee, 26^th^ Session -- November 2000; and (6) A meeting
conducted at Customs Headquarters on December 19, 2001, between a member
of my staff and counsel for Gerber.

The Office of Regulations and Rulings was aware of HQ 963488 (May 2,
2000), issued to the Hong Kong Economic and Trade Office, at the time
this protest decision was prepared. Headquarters Ruling Letter 963488
has been revoked in accordance with 19 U.S.C. 1625 (c). Gerber's entries
of substantially similar nursing pads subject to this protest should be
liquidated or reliquidated in accordance with this decision.

FACTS

The article in issue, identified as a nursing pad, is designed to be
placed in the brassiere of nursing mothers to absorb excess milk.
Gerber's nursing pad is circular, four (4) inches in diameter and
composed of three layers. The initial layer, which will come into
contact with the brassiere, is composed of 100 percent nonwoven
polypropylene fabric. The middle layer, which affords the article its
absorbent capability, is composed of 100 percent polyester and rayon
wadding. The third layer, which will come into contact with the wearer's
skin, is composed of 100 percent woven cotton fabric.

The Customs Service is advised that the merchandise is manufactured in
Hong Kong.

ISSUE

Did the Customs Service properly liquidate Gerber's entries of nursing
pads that have components of nonwoven textile fabric, woven textile
fabric and textile wadding, in which the absorbent quality is provided
by the textile wadding, in subheading 6217.10.1095, Harmonized Tariff
Schedule of the United States Annotated ?

LAW AND ANALYSIS

The Customs Service in Headquarters Ruling Letter 965711 (July 24, 2002)
provided classification analysis, at the heading level, for
substantially similar nursing pads. Customs, in HQ 965711, discussed the
classification of nursing pads with components of textile wadding, woven
textile fabric and nonwoven textile fabric, in which the absorbent
capability is provided by the textile wadding, and concluded that they
should be classified in heading 5601, HTSUS. Heading 5601, HTSUS,
provides for the classification of "\[w\]adding of textile materials and
articles thereof; textile fibers, not extending 5 mm in length (flock),
textile dust and mill neps."

The legal reasoning and analysis addressing the classification, at the
heading level in heading 5601, HTSUS, of nursing pads for which the
absorbent capability is provided by textile wadding, set forth in HQ
965711, is incorporated into this protest decision by reference.
Headquarters Ruling Letter 965711 is attached to and made a part of this
protest decision.

Continuing the classification of Gerber's nursing pads, at the
subheading level, Gerber's nursing pads with components of textile
wadding, woven textile fabric and nonwoven textile fabric, for which the
absorbent capability is provided by textile wadding, are classified in
subheading 5601.10.2000, HTSUSA. Subheading 5601.10.2000, HTSUSA,
provides for:

5601 Wadding of textile materials and articles thereof; textile fibers,
not extending 5 mm in length (flock), textile dust and mill neps:

10. Sanitary towels and tampons, diapers and diaper liners for babies
    and similar sanitary articles, of wadding:

    2000. Other.

The Customs Service Import Specialist in Chicago classified and
liquidated

Gerber's entries of nursing pads with absorbent textile wadding in
subheading 6217.10.95, HTSUS. The reasoning and analysis addressing
Customs decision that nursing pads are not clothing accessories and
should not be classified in heading 6217, HTSUS, is set forth in HQ
965711.

The importer suggests that its merchandise is properly classified in
heading 6307.90.99, HTSUS, as other made up textile articles. Customs,
in HQ 965711, addressed the type of nursing pads that are properly
classified as other made up articles of heading 6307, HTSUS. The Customs
Service directs the importer's attention to HQ 965711 which is attached
to and made a part of this protest decision. The Customs Service notes
that resort to heading 6307, HTSUS, a residual provision, should only be
had when the classification of merchandise is not provided for more
specifically in another heading or elsewhere in the nomenclature.
Gerber's nursing pads, for which the absorbent capability is provided by
textile wadding, are more specifically provided for in heading 5601,
HTSUS.

HOLDING

The Protest is DENIED, except to the extent reclassification of the
merchandise as indicated in this decision results in a partial
allowance.

The Gerber nursing pad with components of textile wadding, woven textile
fabric and nonwoven textile fabric, in which the absorbent capability is
provided by the textile wadding, is classified in subheading
5601.10.2000, Harmonized Tariff Schedule of the United States Annotated.

The General Column 1 Rate of Duty is eight and two-tenths (8.2) percent,
*ad valorem*.

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

The textile quota category for subheading 5601.10.2000, HTSUSA, is
category 669.

There are no applicable quota/visa requirements for products of World
Trade Organization (WTO) member-countries. The textile category number
above applies to merchandise produced in non-WTO member-countries.

The designated textile and apparel category may be subdivided into
parts. If subdivided, the quota and visa 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, to obtain the most current
information available, we suggest the importer check, close to the time
of shipment, the [Status Report On Current Import Quotas (Restraint
Levels)]{.underline} an internal issuance of the U.S. Customs Service
which is updated weekly and is available for inspection at the local
Customs Service office. The [Status Report On Current Import Quotas
(Restraint Levels)]{.underline} is also available on the Customs
Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs
Web site at www.customs.gov.

Due to the changeable nature of the statistical annotation (the ninth
and tenth digits of the classification) and the restraint (quota/visa)
categories, the importer should contact the local Customs office prior
to importation of this merchandise to determine the current status of
any import restraints or requirements.

In accordance with Customs Directive 099 3550-065, dated August 4, 1993,
Subject: Revised Protest Directive, section 3 A. (11) (b), you are to
mail this decision and the Protest (Customs Form 19) to the Protesant no
later than 60 days from the date of this letter. Any reliquidation of
the entry or entries in accordance with this decision must be
accomplished prior to mailing the decision.

The Office of Regulations & Rulings will make this decision available to
Customs personnel and to the public on the Customs Service Home Page on
the

World Wide Web, www.customs.gov, by means of the Freedom of Information
Act

and by other methods of public distribution sixty days from the date of
this decision.

Sincerely,

Myles B. Harmon, Acting Director

Commercial Rulings Division

Enclosure