HQ 957117C - Domestic party petition concerning the tariff classification of 1.25 ounce nonwoven disposable polypropylene protective coveralls; 6210.10.5000, HTSUS; coveralls designed for use in hospitals, clinics, laboratories or contaminated areas; Customs will not create standards which set forth the degree to which coveralls must offer protection so long as coveralls possess an established commercial acceptability for protective uses. - United States International Trade Commision Rulings

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HQ 957117

August 1, 1995

CLA-2 CO:R:C:T 957117 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6210.10.5000

Gail T. Cumins
Sharretts Paley Carter & Blauvelt, P.C.
67 Broad Street
New York, N.Y. 10004

RE: Domestic party petition concerning the tariff classification of 1.25 ounce nonwoven disposable polypropylene protective coveralls; 6210.10.5000, HTSUS; coveralls designed for use in hospitals, clinics, laboratories or contaminated areas; Customs will not create standards which set forth the degree to which coveralls must offer protection so long as coveralls possess an established commercial acceptability for protective uses.

Dear Ms. Cumins:

This is in response to your petition, dated September 29, 1994, submitted on behalf of Gulf Disposables of Walterboro, S.C., pursuant to section 516, Tariff Act of 1930, as amended (19 U.S.C. 1516) and Part 175, Customs Regulations (19 CFR 175), in which you requested the tariff classification of 1.25 ounce nonwoven disposable polypropylene coveralls.

FACTS:

The subject merchandise consists of 1.25 ounce nonwoven disposable polypropylene coveralls. The coveralls feature attached boots, elasticized wrist closures and attached hoods with elasticized edges.

Customs has classified the subject merchandise under subheading 6210.10.5000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for "[G]arments made up of fabrics of heading 5602 or 5603: other: nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas." In your petition you challenge Customs' classification of these types of garments under this subheading and assert that they do not provide adequate protection to be considered true protective apparel.

On April 14, 1995, we published a notice in the Federal Register (60 FR 19111), inviting public comments concerning your petition. Six comments were received by this office. Five comments opposed your petition and supported Customs' classification of the subject garments under subheading 6210.10.5000, HTSUS; the remaining comment concurred with your petition.

ISSUE:

Whether the subject garments are classifiable under subheading 6210.10.5000, HTSUS, which provides for "[G]arments made up of fabrics of heading 5602 or 5603: other: nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas," or under subheading 6210.10.9010, HTSUS, which provides for "[G]arments made up of fabrics of heading 5602 or 5603: other: other: other... overalls and coveralls" which do not qualify as apparel designed for use in hospitals, clinics, laboratories or contaminated areas?

LAW AND ANALYSIS:

Classification of merchandise 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, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

Heading 6210, HTSUS provides for "[G]arments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907." Heading 5603, HTSUS, provides for nonwoven fabrics. As the subject garments are made from nonwoven fabric, they are classifiable within heading 6210, HTSUS. The determinative issue is whether the
subject garments are classifiable under subheading 6210.10.5000, HTSUS, which provides for "[G]arments made up of fabrics of heading 5602 or 5603: other: nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas," or under subheading 6210.10.9010, HTSUS, which provides for "[G]arments made up of fabrics of heading 5602 or 5603: other: other: other... overalls and coveralls" which do not qualify as apparel designed for use in hospitals, clinics, laboratories or contaminated areas. Subheading 6210.10.5000, HTSUS, carries a duty of 5.6 percent ad valorem and does not have an attendant textile category number. Subheading 6210.10.9010, HTSUS, carries a duty of 16.9 percent ad valorem and has a textile category number of 659.

As stated supra, you challenge Customs' classification of these types of garments under subheading 6210.10.5000, HTSUS, and assert that they do not provide adequate protection to be considered true protective apparel. Specifically, you state that 1.25 ounce nonwoven disposable polypropylene coveralls are not designed for use in hospitals, clinics, laboratories or contaminated areas because they are not impermeable to air or liquid borne contaminants, they are not chemical resistant, they do not retard bacterial growth, they do not have a slick surface nor high tensile/tear strength, and they are not puncture and abrasive resistant.

Customs will classify a garment as "designed for use in hospitals, clinics, laboratories or contaminated areas" if it has an established commercial acceptability for such uses. A determination of whether a garment provides sufficient protection from exposure to contaminants is not within the purview of the Customs Service, and it is the marketplace or regulatory agencies which will determine whether a garment offers adequate protection for its intended purpose. Customs has previously determined whether a garment will qualify for classification as a protective garment of subheading 6210.10.5000, HTSUS, on the basis of the garment's physical design and properties, as well as how it is marketed, advertised or sold. The garments submitted to this office as representative samples of 1.25 ounce nonwoven disposable polypropylene coveralls possess design features indicative of protective wear: attached boots, elastic wrist closures, and attached hood with elasticized edges. It is Customs' opinion that garments such as these will adequately serve as protective apparel in some situations, but not in all. We note that the term "designed for use in hospitals, clinics, laboratories or contaminated areas" covers a multitude of environmental situations and no specific set of requirements or standards can be adopted as the only criteria to be used in determining whether a garment offers adequate protection for purposes of classification within subheading 6210.10.5000, HTSUS.

With regard to these garments' established commercial acceptability for use as protective garb, we received comments from five respondents which bear directly on this issue. One respondent stated that it sold 1.25 ounce nonwoven disposable polypropylene coveralls to various customers in the food preparation, pharmaceutical, nursing, medical, environmental and construction industries. Another respondent stated that it sold 1.5 ounce nonwoven disposable polypropylene coveralls for use in hospitals, medical clinics, pharmaceutical laboratories and also to the biotechnology, electronic and aerospace industries. A third respondent noted that it sold 1.25 ounce coveralls to consumers for use in food processing, nursing, maintenance work, environmental work and for use on construction sites. A respondent that both manufactures and imports disposable coveralls stated, "[A]mong our hospital customers, the 1.25 ounce spunbonded polypropylene coverall is by far the most popular style coverall choice ..." and "[S]punbonded polypropylene, even at a weight of 1.25 ounces, demonstrates hydrophobic qualities and is useful in certain hospital, clinic, laboratory and contaminated settings." A fifth respondent also supported Customs' classification of these garments as protective coveralls and noted:

"[There is an established commercial acceptability for using such garments in hospitals, clinics, laboratories or contaminated areas. All the 1.25 ounce nonwoven disposable polypropylene coveralls we imported have being (sic) sold for using (sic) in contaminated areas through Safety Supply Distributors. Attached It is clear that those companies design, market, advertise and sell such garments as protective apparel."

We received one comment in which the respondent concurred with your petition and argued that the subject merchandise was classifiable under subheading 6210.10.9010, HTSUS. Respondent argued that as the subject garments do not provide an adequate barrier between the wearer and liquid and airborne contaminants, classification as protective coveralls is improper. In support of this contention, respondent provided this office with a scientific study which determined that 1.25 ounce nonwoven disposable polypropylene coveralls were found to prevent penetration of only 25-27 percent of airborne asbestos fibers. We do not find this persuasive evidence of the subject garments' unsuitability for use as protective garb. The fact that the subject garments may not be suitable for use in all types of work in contaminated areas does not preclude classification as protective coveralls. The
submitted study does not prove that such garments are not designed for use in hospitals, clinics, laboratories or contaminated areas. The determinative issue is whether these garments provide protection; no quantitative or qualitative standards are set forth in the tariff schedule with regard to the degree of protection that must be afforded. Accordingly, if the garments offer protection, and this is established by evidence of commercial acceptance of the coveralls as protective garments, then classification under subheading 6210.10.5000, HTSUS, is proper.

HOLDING:

The subject merchandise is classifiable under subheading 6210.10.5000, HTSUS, which provides for "[G]arments made up of fabrics of heading 5602 or 5603: other: nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas," dutiable at a rate of 5.6 percent ad valorem. This subheading does not carry an attendant textile quota category number.

In accordance with section 516(c), Tariff Act of 1930, as amended (19 U.S.C. 1516(c)), if you are dissatisfied with this decision and desire a judicial review of the matter, please file with the Commissioner of Customs, as delegate of the Secretary of the Treasury, not later than 30 days after the date of this decision, notice in triplicate, that you desire to contest the classification of the merchandise. The notice should designate the port or ports at which such merchandise is being imported into the United States and at which you desire to protest. In this regard, see 19 CFR 175.23 and 19 CFR 175.24.

Sincerely,

John Durant, Director
Commercial Rulings Division

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