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HQ 965135




April 15, 2002

CLA-2 RR:CR:TE 965135 ttd

CATEGORY: CLASSIFICATION

TARIFF NO: 6217.10.9530

Port Director
Port of New York c/o Chief, Residual Liquidation and Protest Branch
One Penn Plaza,
New York, NY 10019

RE: Application for Further Review of Protest Number 1001-01-102079; Classification of Disposable Sleeve Protectors

Dear Sir:

This is in response to a protest, timely filed, by Rode & Qualey, on behalf of their client, Franklin Disposables, Ltd. (Protestant), against your issuance of a notice to redeliver certain merchandise entered under subheading 6505.90.8015 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The notice to redeliver indicates that the merchandise is properly classified under subheading 6217.10.9530, HTSUSA, which provides for other made up clothing accessories. A sample was forwarded with the AFR, and, is being returned to you, per your request, under separate cover.

FACTS:

The items at issue are disposable sleeve protectors made of non-woven spun-bonded polypropylene fabric that has been coated on one side with polyethylene plastic. To form the sleeve, the fabric is shaped into a cylinder and seamed along its length. An elasticized strip is sewn to the edge of both openings of the cylinder. They measure approximately 16 inches in length.

The Protestant states that the sleeve protectors are used in the healthcare, food processing and chemical industries, to protect the arms of workers and to prevent contamination by the arms of workers.

ISSUE:

Whether the subject items are classifiable under heading 6210, HTSUSA, which provides for garments made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907; heading 6217, HTSUSA, which provides for other made up clothing accessories; or heading 6307, HTSUSA, which provides for other made up articles.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” In the event that 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 may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the heading. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

The competing headings under consideration are heading 6210, HTSUSA, which provides for garments made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907; heading 6217, HTSUSA, which provides for other made up clothing accessories; and heading 6307, HTSUSA, which covers other made up textile articles.

Heading 6210, HTSUSA, provides for garments made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907. The EN to heading 6210 provide that the heading does not include clothing accessories (e.g., gloves, mittens and mitts of heading 6216). In Headquarters Ruling Letter (HQ) 085012, dated August 7, 1989, Customs found that garments are articles which cover the trunk of the body. The American Heritage Dictionary of the English Language: Fourth Edition (2000) defines "garment" as an article of clothing. In HQ 082173, dated October 2, 1989, Customs referenced Mary Brooks Pickens' The Fashion Dictionary (1973), to define the following: apparel: Clothing of all sorts; * * * (Page 6)
clothing: Any wearing apparel. (Page 70)
garment: Any article of apparel, chiefly one made of fabric. (Page 160).

In Webster's II New Riverside University Dictionary, at 118 (1984), apparel is defined as "Clothing." Thus, according to the above definitions, the terms apparel, clothing and garment appear interchangeable.

In HQ 960919, dated July 11, 2001, Customs classified disposable surgical gowns in heading 6210, HTSUSA, as garments made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907. Similarly, in HQ 958389, dated September 7, 1995, disposable coveralls were classified in heading 6210, HTSUSA. See also HQ 957115, dated April 4, 1995; HQ 088683, dated June 11, 1993; and HQ 085360, dated December 13, 1989.

The sleeve protectors at issue, unlike the disposable surgical gowns in HQ 960919 and coveralls in HQ 958389, are not garments. The gowns and coveralls in those rulings covered the trunk of the body and were appropriately considered garments of heading 6210, HTSUSA. In contrast, the subject disposable sleeve protectors do not cover the trunk of the body, and, accordingly, are not appropriately regarded as articles of clothing. Considering that the subject sleeve protectors are more accurately described as clothing accessories and the EN provide that heading 6210 does not include clothing accessories, the sleeve protectors are not properly classified in heading 6210, HTSUSA, as garments made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907.

In a supplemental submission of January 11, 2002, the Protestant contends that additional U.S. Rule of Interpretation 1(a) and the factors applied in United States v. Carborundum Co., 63 CCPA98, C.A.D. 1172, 536 F. 2d 373 (CAFC) Cert den., Carborundum Co v. United States, 429 U.S. 979 (1976), should be applied here. The Protestant implies that the subject sleeve protectors are properly classifiable in subheading 6210.10.5000, HTSUSA, as garments made up of fabrics heading 5602, 5603, 5903, 5906 or 5907. We disagree.

Subheading 6210.10.5000, HTSUSA, covers nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas. However, as discussed above, the merchandise under consideration is not apparel, therefore, classification in subheading 6210.10.5000, HTSUSA, is incorrect. Furthermore, classification of the subject sleeve protectors must begin at the four digit level and they are properly classified under the four digit heading that most specifically describes them. Following the hierarchical system of the HTSUSA, the subject sleeve protectors must then be classified under the appropriate six and then eight digit subheadings, and finally under the proper statistical annotation. Accordingly, before consideration is given to classification in a subheading within a four digit heading, the subject merchandise must first satisfy the provisions of that four digit heading. When an article is precluded from being classifiable within a four digit heading, it may not then be classified in that heading because a subheading seems appropriate. In this case, the sleeve protectors are not garments; therefore, they are not classifiable in heading 6210, HTSUSA. As the instant merchandise is not properly classifiable at the four digit level in heading 6210, HTSUSA, it is improper to invoke subheading 6210.10.5000, as only the four digit headings are comparable. Moreover, since heading 6210, at the four digit heading level, is not a "use provision", U.S. Rule of Interpretation 1(a) is not binding in this case, and, the Carborundum factors do not apply.

Having precluded classification in heading 6210, HTSUSA, heading 6217, HTSUSA, provides, in pertinent part, for other made up clothing accessories. The EN to heading 6217, HTSUSA, specifically includes "sleeve protectors" among the merchandise classifiable within the heading.

While the term "accessory" is not defined in the tariff schedule or the EN, Merriam-Webster's Collegiate Dictionary Online, (2001), defines "accessory" as a thing of secondary or subordinate importance or an object or device not essential in itself but adding to the beauty, convenience, or effectiveness of something else. In HQ 080498, dated December 28, 1989, Customs ruled that other made up clothing accessories can cover a wide variety of items, including those which may be functional as opposed to purely decorative.

In HQ 959672, dated September 20, 1996, Customs classified elasticized sleeves worn to protect clothing from the wrist to the elbow in heading 6217, HTSUSA, as accessories to a bib apron. See also HQ 961737, dated December 8, 1998 (Sleeve protectors used by welders to protect both their clothes and bodies from flames during welding were classified in heading 6217, as accessories to an apron). Moreover, in HQ 961108, dated September 2, 1999, Customs classified sleeve protectors, nearly identical to the ones at issue here, in heading 6217, HTSUSA, as other made up clothing accessories. The sleeve protectors in HQ 961108 were made of made of spun-bonded olefin for use by hospitals, laboratories, chemical companies, food processing companies, hazardous waste disposal companies and in office clerical jobs to protect people from contaminated areas, hazardous materials, sterilized environments, and for protection of clothes from stains. Likewise, in HQ 961080, dated September 14, 1999, sleeve protectors made of a woven nylon base coated with polyurethane on one side worn to protect factory workers and food processors from animal fats and chemicals were classified in subheading 6217.10.9530, HTSUSA. See also PD B89009, dated September 16, 1997 and NY E85275, dated August 11, 1999. In HQ 961108 and HQ 961080, Customs ruled that these kinds of sleeve protectors were used with a garment and purely functional articles, and, were appropriately classified as clothing accessories in heading 6217, HTSUSA.

The subject sleeve protectors, like the sleeve protectors in HQ 961108 and HQ 961080, are made of non-woven spun-bonded polypropylene fabric that has been coated on one side with polyethylene plastic. Moreover, the subject sleeve protectors are also for use in the healthcare, food processing and chemical industries, to protect skin and clothing from the wrist to elbow. The instant sleeve protectors provide a protective barrier between bare skin (when worn with a short-sleeve shirt) or sleeves (when worn with a long-sleeve shirt) and the surrounding environment and prevent contamination by the arms or sleeves and protect the arms or sleeves from contamination. Accordingly, the instant sleeve protectors, like those in HQ 961108 and HQ 961080, are functional articles that augment a garment, namely a shirt. Therefore, the sleeve protectors at issue are properly classified in heading 6217, HTSUSA, as other made up clothing accessories.

The Protestant argues that the analysis of HQ 959672 (cited above) does not apply here and that Customs Headquarters has never considered the argument that this type of disposable sleeve is not sold or used as an accessory to any article of clothing, particularly to an apron or bib. The Protestant further asserts that the sleeve protectors are the primary article and do not relate to or accessorize another article. We find these arguments without merit, based on HQ 961108 and HQ 961080 (cited above) and the specific reference to sleeve protectors as clothing accessories in the EN to heading 6217.

The Protestant contends that the sleeve protectors cited in the EN to heading 6217, HTSUSA, are garment accessories designed for wear with a long-sleeved shirt or blouse. The Protestant further asserts that the subject sleeve protectors are as likely to be worn on the arm directly over the skin such as with short-sleeves and therefore, are not like the sleeve protectors listed in the EN. While we acknowledge that the subject sleeve protectors are as likely to be worn with short sleeves, we do not find that this factor reduces their likeness with the sleeve protectors referenced in the EN. The subject sleeve protectors may serve as accessories to either a short-sleeve or long-sleeve garment; therefore, they remain accessories to an article of clothing. Moreover, in HQ 963734, dated March 28, 2001, Customs ruled that knitted cotton cone-shaped tubular sleeves, which were intended to be worn only with short-sleeve shirts, were properly classified under heading 6117, HTSUSA, as other made up clothing accessories. See also HQ 961108 and HQ 961080 (cited above).

Heading 6307, HTSUSA, provides for other made up articles of textile materials. The EN to heading 6307 state that the heading covers made up articles of any textile material which are not included more specifically elsewhere in the tariff schedule. The items under consideration are more specifically provided for elsewhere in heading 6217, HTSUSA, and therefore are not properly classifiable under heading 6307, HTSUSA.

In his protest letter, the Protestant cites HQ 951844, HQ 961167, and NY G83136, and asserts that the subject sleeve protectors are classifiable in heading 6307, HTSUSA, as other made up textile articles. We disagree. None of the articles in the ruling letters cited by the Protestant were accessories to clothing, as none of the primary items were articles of clothing. Therefore, the merchandise considered in those rulings did not augment an outfit and were not intended for use solely or principally with a specific article or type of clothing. See HQ 951844, dated September 4, 1992 (headbands and wristbands classified in heading 6307); HQ 961167, dated November 28, 2000 (textile sunshield used with a hat classified in heading 6307); and NY G83136, dated October 25, 2000 (disposable beard covers and shoe covers classified in heading 6307). Therefore, those articles were not properly classifiable in heading 6217, HTSUSA, as clothing accessories. In this situation, the subject merchandise is intended for use with either a long-sleeve or short-sleeve garment, an article of clothing, and is therefore a clothing accessory.

The subject sleeve protectors are purely functional articles that augment a garment and provide a protective barrier between the bare arms or shirt sleeves and the surrounding environment and prevent contamination by the arms or sleeves and protect the arms or sleeves from contamination. Thus, the subject sleeve protectors are properly classified in heading 6217, HTSUSA, as other made up clothing accessories.

HOLDING:

Based on the foregoing, the subject merchandise is classified in subheading 6217.10.9530, HTSUSA, which provides for "Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Of man-made fibers." They are dutiable at the general column one rate at 14.8 percent ad valorem and the textile category is 659.

The protest should be denied in full. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision. Since there are no reliquidations involved in this protest, you should be able to accomplish this direction prior to the 60 day period.

Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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