HQ 952582: Request for reconsideration of Headquarters Ruling Letter 951411; disposable panties with sanitary napkin; subheading 4818.40.40; GRIs 3(a), (b) and (c); Explanatory Note (VIII) to GRI 3(b)

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 952582

                        January 15, 1993


CLA-2 CO:R:C:T  952582  NLP

CATEGORY: Classification

TARIFF NO.: 6208.92.0025

Mr. William A. Barabino, President
In-Case Products, Inc., Suite 123
28310 Roadside Drive
Agoura Hills, CA  91301

RE:  Request for reconsideration of Headquarters Ruling Letter
     951411; disposable panties with sanitary napkin; subheading
     4818.40.40; GRIs 3(a), (b) and (c); Explanatory Note (VIII)
     to GRI 3(b) 

Dear Mr. Barabino:

     This is in response to your letter dated August 31, 1992, in
which you requested a reconsideration of Headquarters Ruling
Letter (HRL) 951411 dated June 11, 1992, which classified a pair
of disposable women's panties from China under the Harmonized
Tariff Schedule of the United States (HTSUS). 

FACTS:

     The article at issue is a woman's disposable panty, style
no. BNP-1FN-25, constructed of 100% olefin fiber (polypropylene). 
The panty has an elasticized waist, elasticized leg openings and
a sanitary napkin sewn into the crotch panel.  The sanitary
napkin weighs 8.7 grams and is comprised of 8.45 grams of
cellulose fiber and .25 grams of other materials.  The total
weight of the panty is 14.8 grams.

     HRL 951411 stated that, pursuant to General Rule of
Interpretation (GRI) 3(b), neither the panty portion or the
sanitary napkin portion constituted the article's essential
character.  Therefore, based on GRI 3(c), the article was
classified in subheading 6208.92.0025, HTSUS, which provides for
"[w]omen's or girls' singlets and other undershirts, slips,
petticoats, briefs, panties, nightdresses, pajamas, negligees,
bathrobes, dressing gowns and similar articles: [o]ther: of man-
made fibers: [d]isposable briefs and panties designed for one-
time use."

     It is your position that the panty would not be worn unless
the user was having her menstrual period.  Therefore, the panty
portion is not the essential character of the garment and it is
classified in subheading 4818.40.40, HTSUS, which provides for
"[t]oilet paper..., 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 fiber: [s]anitary napkins and tampons, diapers
and diaper liners and similar sanitary articles: [o]ther."  

ISSUE:

     Is the subject panty with a sanitary napkin classified in
subheading 6802.92.0025, HTSUS, or in subheading 4818.40.40,
HTSUS?

LAW AND ANALYSIS:

     The classification of goods under the HTSUS is governed by
the GRIs, taken in order.  GRI 1 provides that classification
shall be determined according to the terms of the headings 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 GRI's may be applied, taken in order.  

      In determining the classification of the disposable panty
with a sanitary napkin, the two headings at issue are:

     heading 4818, HTSUS:     Toilet paper..., 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 fiber.

     heading 6802, HTSUS:     Women's or girls' singlets and
                              other undershirts, slips,
                              petticoats, briefs, panties,
                              nightdresses, pajamas, negligees,
                              bathrobes, dressing gowns and
                              similar articles.


     Applying GRI 1, we find that neither of these headings
specifically describe the subject article by their terms. The
panty is not just a disposable panty, nor is it just a sanitary
napkin.  Moreover, the articles of subheading 4814.40.40, HTSUS,
when worn by adults, are ordinarily of a kind used in addition to
regular underclothing.  They do not, as this product does, take
the place of or become regular underclothing.  As there is no
other heading that specifically describes the subject article,
the remaining GRI's, taken in order, are used.  

     GRI 3 governs the classification of goods which are prima
facie classifiable within two or more headings and provides the
following:

          When, by application of rule 2(b), or for any other
     reason, goods are, prima facie, classifiable under two or
     more headings, classification shall be effected as follows:

          (a)  The heading which provides the most specific
               description shall be preferred to headings
               providing a more general description.  However,
               when two or more headings each refer to part only
               of the materials or substances contained in mixed
               or composite goods or to part only of the items   
               in a set put up for retail sale, those headings   
               are to be regarded as equally specific in relation
               to those goods, even if one of them gives a more  
               complete or precise description of the goods.

You assert that heading 4818, HTSUS, does provide a specific
description of the intended use of the article.  However, it is
our position that the article, in and of itself, is not just a
sanitary napkin nor is it just used as a sanitary napkin.  The
panty with a sanitary napkin is also used in place of a regular
panty during a woman's menstrual cycle.  

     As the two headings each refer to part only of the article,
to wit: heading 4818, HTSUS, provides for the cellulose sanitary
napkin and heading 6208, HTSUS, provides for the synthetic
textile panty, it cannot be classified under GRI 3(a).  The
article is classified in accordance with GRI 3(b), which provides
as follows:

          (b)  Mixtures, composite goods consisting of different
               materials or made up of different components, and
               goods put up in sets for retail sale, which cannot
               be classified by reference to 3(a), shall be 
               classified as if they consisted of the material or
               component which gives them their essential
               character, insofar as this criterion is           
               applicable.

     EN(VIII) to GRI 3(b) provides, on page 4, the following
guidelines for determining the essential character of an article:

          (VIII)  The factor which determines essential          
                  character will vary as between different kinds
                  of goods.  It may, for example, be determined  
                  by the nature of the material or component, its
                  bulk, quantity, weight or value, or by the     
                  role of a constituent material in relation to  
                  the use of the goods.


     Based on an examination of the panty and the various GRIs,
we agree with the analysis and conclusion in HRL 951411.  As both
the panty and the sanitary napkin are deemed to be equally
important, the essential character is not readily apparent and
classification of the article in ascertained by utilizing GRI
3(c).  The heading which occurs last in numerical order among
those which equally merit consideration is heading 6208, HTSUS. 
Accordingly, the panty is classified in heading 6208, HTSUS. 
Specifically, it is classified in subheading 6208.92.0025, HTSUS.

 HOLDING:

     HRL 951411 is affirmed.  The disposable panty is classified
in subheading 6802.92.0025, HTSUS.  The rate of duty is 17% ad
valorem.

                                   Sincerely,



                                   John Durant, Director
                                   Commercial Rulings Division