CLA-2 OT:RR:CTF:TCM H050635 CkG
TARIFF NO: 6210.10.50
Donald S. Stein
Greenberg Traurig, LLP
2101 L St., NW
Suite 1000
Washington, DC 20037
Re: Request for Binding Ruling for a certain Lab Coat
Dear Mr. Stein,
This is in response to your request of January 9, 2009, on behalf of your client, Kimberly-Clark Global Sales, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a certain Kleenguard® A60 Lab Coat. Samples have been provided with the request.
FACTS:
The sample submitted is a full length lab coat featuring an open collar, long sleeves with open cuffs, a right patch pocket, a left breast pocket and a full front opening with a four snap closure. The garment is made from a three-layered nonwoven fabric. The outer layers are made from polypropylene. The middle layer is made from a microporous film that, you claim, allows heat and sweat vapor to escape while protecting against dry particulates and fluids.
ISSUE:
Is the garment classifiable in subheading 6210.10.50, HTSUS, as apparel designed for use in hospitals, clinics, laboratories or contaminated areas?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule 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 GRIs 2 through 6 may then be applied in order. GRI 6, HTSUS, requires that the GRI's be applied at the subheading level on the understanding that only subheadings at the same level are comparable. The GRI's apply in the same manner when comparing subheadings within a heading.
The HTSUS provisions under consideration are as follows:
6210: Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907:
6210.10: Of fabrics of heading 5602 or 5603:
Other:
6210.10.50: Nonwoven disposable apparel designed for use in hospitals,
clinics, laboratories or contaminated areas.
Other:
6210.10.90: Other:
* * * * * * *
At GRI 1, there is no dispute that the instant merchandise is described by and is thus classifiable in heading 6210, HTSUS, as a garment made of fabric of heading 5603. The issue arises at the eight-digit level. Therefore, we begin the analysis using GRI 6. The issue is whether, at GRI 6, the garment is designed for use in hospitals, clinics or contaminated areas.
CBP has previously determined whether a garment will qualify for classification as a protective garment of subheading 6210.10.50, HTSUS, on the basis of the garment's physical design and properties. Certain design features are a strong indication that a garment has been designed for use in hospitals, laboratories, or contaminated areas. Such features include close or adjustable fits at the neck and wrists, full torso coverage and closure, resistance to fluids and other contaminants, and resistance to tears and abrasions. In addition to the specialized design features, CBP also looks to whether the marketing, advertising, and sale of the garment are directed toward the particular uses for which the garment is claimed to be designed. See e.g., Headquarters Ruling Letter (HQ) 958389, dated September 7, 1995; HQ 957117, dated August 1, 1995; HQ 086972, dated July 12, 1990; New York Ruling Letter (NY) C80096, dated October 24, 1997; NY M85358, dated August 01, 2006; and NY R02973, dated December 27, 2005.
In HQ 957117, for example, CBP classified a set of polypropylene coveralls with attached boots, elasticized wrist closures, and an elasticized hood as a protective garment of subheading 6210.10.50, HTSUS, partly due to the existence of these features, but also because the marketing, advertisement and sale of the garment were directed towards its claimed use. There, we stated, in pertinent part:
“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... it is the marketplace or regulatory agencies which will determine whether a garment offers adequate protection for its intended purpose….If the garments offer protection, and this is established by evidence of commercial acceptance of the coveralls as protective garments, then classification under subheading 6210.10.50, HTSUS, is proper…”
We noted that the subject coveralls were sold to and used by a wide variety of industries, including food preparation, pharmaceutical, nursing, medical, biotechnology, electronic, aerospace, environmental and construction. CBP found this to constitute sufficient evidence of commercial acceptability for use in hospitals, clinics, laboratories and contaminated areas so that the relative permeability of the fabric (it was found to allow penetration of about 75% percent of airborne asbestos fibers) did not preclude its classification as a protective garment of subheading 6210.10.50, HTSUS.
The instant merchandise lacks the attached boots, hood and elasticized wrist closures of the coveralls discussed in HQ 957117, and thus may not be fully resistant to all possible contaminants. However, garments lacking key protective features have previously been classified in subheading 6210.10.50, HTSUS, based on evidence of their primary use in hospitals, laboratories, ambulances, etc., or the barrier properties of their constituent fabric. For example, in HQ 964179, dated August 10, 2000, CBP classified a coverall garment with full front zippered closure, pointed collar, and long sleeves and pants (both with open cuffs) in subheading 6210.10.50, HTSUS, based on evidence that the product was sold exclusively to hospitals and medical supply distributors, and due to the fabric’s resistance to fluids. Similarly, in HQ 086972, dated July 12, 1990, CBP found that a garment with open cuffs at the wrists and ankles was
classifiable in 6210.10.50, HTSUS, largely because the garment was constructed of Tyvek®, a fabric with properties such as a relatively slick polyethylene surface, high
tensile/tear strength, and puncture and abrasion resistance. Other decisions similarly highlight the barrier and chemical resistance properties of Tyvek® which distinguish it from general purpose cloth coveralls. In HQ 085419, dated January 26, 1990, CBP, describes Tyvek as:
“a virtually impermeable nonwoven fabric made of high density polyethylene fibers which are bonded together with heat and pressure. When used to make garments, Type 14 Tyvek serves as an effective barrier in environments such as clean rooms, hospitals, clinics, laboratories, and contaminated areas. Type 14 Tyvek's effectiveness is due to some of the following characteristics. Its continuous polyethylene fibers are non-absorbent and essentially inert chemically and biologically. Tyvek has high tensile/tear strength in all directions because its continuous fibers are spunbonded in all directions. It is equally strong when wet or dry. Tyvek also has good puncture and abrasion resistance and is static-resistant.”
See also, HQ 084164, dated September 20, 1989.
You claim that the material used to construct the subject lab coat provides superior particle and static protection compared to Tyvek®, according to the ASTM F1670 (Standard Test Method for Resistance of Materials Used in Protective Clothing to Penetration by Bloodborne Pathogens) test and NFRA (National Fire Protection Agency) static decay requirements. Your website, as well as the material on Kleenguard® fabric properties submitted with your request, support these claims. See, http://www.donahue-inc.com/kcsafety/tech_prod.html. We find that the information provided regarding the fluid, tear and abrasion resistance of the subject lab coat as well as the resemblance of the Kleenguard® fabric to Tyvek® are sufficient to establish the suitability of the lab coat’s physical design for its claimed use.
Furthermore, the marketing of the A60 lab coat is consistent with the claimed use of the product. The Kimberly Clark website suggests “Emergency medical response,” “Crime scene cleanup,” “Embalming forensics,” “Tank cleaning,” “Fiberglass manufacturing,” and “Animal research” as typical uses of the product. The A60 lab coat is also described as “Bloodborne Pathogen and Chemical Splash Protection Apparel.” See http://www.nxtbook.com/nxtbooks/kc/kleenguard/index.php?startid=34. The particulate penetration tests conducted on the fabric by the importer and highlighted on the Kimberly-Clark website are also geared towards medical/scientific purchasers, as the industry most likely to be concerned with resistance to fluid-borne pathogens. Moreover, it is clear that the various Kleenguard® brand models are unique, designed with different features and marketed towards distinct industries. For example, a different model of Kleenguard® coveralls, the A65, is constructed and tested for tear and flame-resistance, and suggested for use in welding and oil refining. See http://www.nxtbook.com/nxtbooks/kc/kleenguard/index.php?startid=34. The instant A60 lab coat is therefore specially designed for use in hospitals, clinics and laboratories, rather than for general use.
HOLDING:
By application of GRIs 1 and 6, the subject disposable coveralls are properly classified in subheading 6210.10.50, HTSUS, which provides for: “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Of fabrics of heading 5602 or 5603: Other: Nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas.” The 2009 column one, general rate of duty is Free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/.
Sincerely,
Myles B. Harmon, Director,
Commercial and Trade Facilitation Division