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HQ 085360


December 13, 1989

CLA-2 CO:R:C:G 085360 LS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6210.10.4010

Norman Rivkin, President
Latex Glove Co., Inc.
205 Huehl Road
Northbrook, Illinois 60062

RE: Tariff classification of a nonwoven disposable coverall made of 100 percent spun-bonded polypropylene

Dear Mr. Rivkin:

This is a reconsideration of New York Ruling Letter 837654, dated March 20, 1989, which was initiated by Customs New York Seaport.

FACTS:

The merchandise at issue consists of two nonwoven disposable protective coveralls (Style Numbers T-504 and E-504) made of 100 percent spun-bonded polypropylene which are imported from Taiwan or China. Style E-504 has an additional polyethylene laminate on the outer surface. The coveralls are manufactured in sizes small through XXX large. Both garments have attached hoods with drawstrings which provide a snug fit around the head. The garments also provide foot protection in the form of boots which are part of the one-piece coverall. The coveralls have full length sleeves with elastic closures on the wrists to provide a snug fit. A zipper runs down the front of the coveralls and a seam is sewn across the chest rather than under the arms. The importer has informed us that these two garments provide a fully enclosed covering for the wearer's body when worn with: (1) rubber gloves, which are generally taped to the end of each sleeve; and (2) a respirator face mask, which protects the eyes, nose and mouth.

New York Ruling Letter 837654, dated March 20, 1989, which responded to your original ruling request of February 28, 1989, found that the subject coveralls are classifiable in subheading 6210.10.4010, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for "Garments, made up of fabrics of heading 5602 or 5603: Other: Nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas." Customs New York Seaport requested, by a memorandum dated July 21, 1989, that we reconsider the above- cited ruling in view of Headquarters Ruling Letter (HRL) 080056, dated August 27, 1987. The question was raised whether the garments, which are used for industrial purposes, should have been classified in subheading 6210.10.4015, HTSUSA, which provides for "Garments made up of fabrics of heading 5602 or 5603: Other: Other: Overalls and coveralls," i.e., coveralls which are otherwise classifiable in subheading 6210.10.40, HTSUSA, but which do not qualify as "nonwoven disposable apparel designed for use in hospitals, clinics, laboratories, or contaminated areas." Subheading 6210.10.4015 provides for a textile category number, whereas subheading 6210.10.4010 does not provide for such a number.

In order to respond to the request for reconsideration, we requested from you a sample and further information which would support the original ruling that the garments are designed for use in hospitals, clinics, laboratories or contaminated areas. This information was provided in the form of two letters, dated September 18, 1989 and October 20, 1989, and an advertising brochure. Although you only sent us a sample of Style P-504, you state that your original ruling request was also intended to cover Style E-504.

The advertising brochure distributed by your company pertains to asbestos abatement equipment, clothing, and accessories. On the second page of the brochure, in a section entitled "We Specialize in Disposable Clothing," various styles of such clothing are listed, including the two garments at issue. You state that you sell these garments solely for use in asbestos abatement work. As distributors of these garments, your primary sales are to environmental contractors whose employees perform asbestos abatement work. In addition, you sell the garments directly to schools, institutions, and
governmental agencies which use in-house personnel to do the actual abatement work. You also state that your company has been supplying work gloves and safety products to every type of industry for 55 years. When the need for asbestos abatement protection became necessary, you trained a special staff and developed a special group of products, including the subject garments, to serve the requirements of this activity. You claim that the coveralls at issue are "designed for use in contaminated areas," which includes areas where asbestos abatement work is being performed, because they provide a barrier over the worker's skin to prevent penetration of loose asbestos fibers. You have also informed us that the garments comply with standards set by OSHA with respect to exposure to asbestos and other toxic and hazardous substances. These standards are found in 29 CFR 1910.1000-.1500. 29 CFR 1910.1001(h)(1) provides that if an employee is exposed to asbestos or the other named substances above the permissible exposure limit set forth in 29 CFR 1910.1001(c), the employer is required to provide the employee with appropriate protective work clothing and equipment, which includes: (1) coveralls or similar full-body work clothing; (2) gloves, head coverings, and foot coverings; and (3) face shields, vented goggles, or other appropriate protective equipment.

ISSUE:

Whether the subject nonwoven disposable coveralls are classifiable in subheading 6210.10.4010 or 6210.10.4015, HTSUSA?

LAW AND ANALYSIS:

There is no dispute that the garments are classifiable in subheading 6210.10.40, HTSUSA, which provides for garments made up of fabrics of heading 5602 or 5603: other, because they are made of a nonwoven material covered by heading 5603. The issue before us is whether the subject garments meet the criteria of "nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas" so as to be classifiable in subheading 6210.10.4010, HTSUSA.

In Headquarters Ruling Letter (HRL) 084164, dated September 20, 1989, we found that a nonwoven disposable
protective coverall manufactured of Type 1422A Tyvek was classifiable in subheading 6210.10.4010, HTSUSA, because it was designed for use in "contaminated areas." The one-piece coverall had a zippered front, long sleeves, and a collar. Although the coverall style at issue did not have an attached hood or shoe covers, it was usually worn with such accessories taped to the garment. Among the contaminants which the garment was designed to protect against were radioactive substances, asbestos, pesticides, and viral agents. We found that the term "contaminated areas" includes environments where contamination exists from those substances.

A garment is found to be designed for use in environments named in a tariff provision if it has design features which peculiarly adapt it for those uses. In addition to the design features, we consider whether the marketing, advertising, and sale of the garment are directed toward the uses for which the garment is claimed to be designed. In HRL 084164, we found that the use of Type 14 Tyvek material was a special design feature which peculiarly adapted the garment for use with the above-mentioned contaminants. Among the properties of Tyvek which adapted it for those uses were its impermeability, chemical resistance, relatively slick polyethylene surface, high tensile/tear strength, and its good puncture and abrasion resistance. We also determined that the garment met certain governmental standards, such as the OSHA standards with respect to exposure to asbestos and other hazardous substances. The importer of the Tyvek garment presented substantial evidence indicating that the coverall was primarily used to protect workers against hazardous or toxic chemicals or particulates, and that its marketing and sales were directed toward those uses.

In an earlier ruling, HRL 080056, dated August 27, 1987, we held that a nonwoven disposable coverall made of 100 percent spun-bonded polypropylene was classifiable in item 384.9310, Tariff Schedules of the United States Annotated (TSUSA), which provides for "coveralls, overalls, jumpsuits and similar apparel," textile category 659, rather than in item 384.9305, TSUSA, which provides for "nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas." The garment in HRL 080056 was claimed to be designed for use in hospitals, operating rooms, laboratories, clinics, pharmaceutical facilities, and central sterile supplies. The garment was found not to be designed for those uses because it
did not have particular features which adapted it for those uses. The ruling compared the garment to another coverall sold by the same importer, which was described as "identical" except that it was constructed of a different nonwoven fabric, i.e., Tyvek, and was used for dirty industrial jobs. HRL 080056 concluded that the garment at issue could not be said to be designed for use in hospitals because both it and the Tyvek garment had exactly the same design and were claimed to be used for different functions.

In HRL 084164, we modified HRL 080056 to the extent that it suggests that a coverall made of Type 14 Tyvek material is only for dirty industrial jobs, and therefore is not "designed for use" in contaminated areas. Most of the industrial uses of Type 14 Tyvek clothing were shown to be directed toward safety applications, such as use with asbestos, radioactive contaminants, lead dust, PCB, and pesticide sprays. We also found that HRL 080056 was in error to the extent that it infers that a garment which has multiple uses cannot be considered "designed for use in hospitals, clinics, laboratories or contaminated areas."

We find that HRL 084164 is controlling with respect to the classification of the instant polypropylene coveralls as "nonwoven disposable apparel designed for use in . . . contaminated areas," in subheading 6210.10.4010, HTSUSA. First, the garments have design features which adapt them for use in asbestos abatement contaminated areas. Those features include the attached hood with drawstring, the attached boots, and the elastic closures on the wrists of the sleeves. As discussed above, these features are designed to create a barrier over the worker's body so as to prevent penetration of loose asbestos fibers. The drawstring on the hood is designed to create a snug seal around the face when a respirator face mask is worn. The elastic closures on the wrists prevent fibers from penetrating the sleeves. Likewise, the boots, as part of the one-piece construction, protect the feet from contamination. In addition to the existence of special design features, the importer has also shown that the marketing, advertising, and sale of the garments are directed toward asbestos abatement areas, which qualify as contaminated areas, as that term in used in subheading 6210.10.4010, TSUSA.

This finding is consistent with our decision in HRL 080056, which also involved a garment made of 100 percent spun- bonded polypropylene. The garment in that case is distinguishable from the instant garments in several material respects. First, the garment in HRL 080056 did not have the design features discussed in the preceding paragraph. Second, the polypropylene which composes the instant garments is a thicker gauge than the polypropylene which comprised the garment in HRL 080056, and is therefore less permeable. This fairly thick gauge of fabric may account for the company's claim that the garment protects against the penetration of asbestos fibers.

In HRL 084164, the garment found to be designed for use in contaminated areas, which included areas containing contaminants such as asbestos, radioactive dust, pesticides, and viral agents, was made of Tyvek, a virtually impermeable fabric. However, you claim that protection against asbestos fibers may also be provided by garments made of other fabrics, such as the polypropylene of the instant garments.

HOLDING:

For the foregoing reasons, the subject polypropylene disposable coveralls with hood and feet are classifiable in subheading 6210.10.4010, HTSUSA, as nonwoven disposable garments designed for use in contaminated areas. The contaminated areas for which they are designed are asbestos abatement areas. New York Ruling Letter 837654, dated March 20, 1989, is affirmed.

Sincerely,

John Durant, Director

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