OT:RR:CTF:VS H219220 CMR
Port Director
U.S. Customs and Border Protection
1000 Second Ave., Suite 2100 Seattle, WA 98104
RE: Application for Further Review and Protest 3001-12-100058; Classification of disposable coveralls; 6210.10.50, HTSUS; 6210.10.90, HTSUS
Dear Mr. Wilkerson:
This is in response to your memorandum forwarding the Application for Further Review (AFR) and Protest 3001-12-1000058 to this office for our review. The protest was timely filed by Joel R. Junker & Associates, on behalf of their client, Western Pacific Trading. The application for further review cited section 174.24(b) of the Customs and Border Protection Regulations (19 CFR 174.24(b)) and merely recited the language of the regulation. No argument was presented to substantiate the allegation that the matter before the port involved questions of law or fact which CBP or the courts have not ruled upon. In fact, the protest submission contains numerous citations to rulings issued by CBP on substantially similar merchandise. AFR should not have been approved based on the argument presented.
However, a review of the protest submission reveals that AFR may be justified under 19 CFR 174.24(a). The submission contains numerous citations to rulings on similar merchandise classified by CBP in subheading 6210.10.50, Harmonized Tariff Schedule of the United States (HTSUS), which provides for, among other things, garments made up of fabrics of heading 5603, nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas, other than of fabrics formed on a base of paper or covered or lined with paper. Your port classified the merchandise at issue in subheading 6210.10.90, HTSUS, which provides for, among other things, garments made up of fabrics of heading 5603, other than the garments described in subheading 6210.10.50, HTSUS, and other than disposable briefs and panties designed for one-time use. Based on counsel’s argument, AFR is warranted under 19 CFR 174.24(a).
FACTS:
The merchandise at issue consists of two styles of coveralls constructed from non-woven materials. The PRO 1000 coverall is made from spunbond-meltdown-spunbond (SMS) polypropylene nonwoven fabric. The PRO 3000 is made from spun-bond polypropylene fabric weighing 60 grams per square meter which is covered with a clear polyethylene film weighing 30 grams per square meter. Both coveralls feature an attached hood with elastic around the edge to cling to the head, long sleeves with elastic at the sleeve ends, long pants legs with elastic at the leg bottoms with sewn in side ankle zippers, a chest patch pocket, two front patch pockets below the waist, one rear hip patch pocket on the right side, a two-way front zipper that runs the full length of the torso with a covering flap, and elastic sewn into a rear panel at approximately the waistline.
The packaging for the PRO 1000 states, in relevant part: “This coverall is designed as a general purpose garment and should not be used in situations requiring protection from airborne particles or micro fibers.” The packaging for the PRO 3000 states, in relevant part: “It offers complete protection against airborne particulates and micro fibers. It has a one-way breathable membrane that allows air to escape, providing a high comfort level to the user.”
Further with regard to the PRO 1000, a letter from a customer of Western Pacific Trading was submitted wherein the customer stated that its two related companies “are in the business of some type of biohazard removal and disposal.” The customer’s letter stated that it uses the Pro 1000 to protect its crews from biological contamination and that although the suits are not waterproof they do provide some protection from biohazards as well as to bactericides.
There is no dispute that the garments at issue are classified in subheading 6210.10, HTSUS, as “[g]arments made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Of fabrics of heading 5602 or 5603[,]” other than of fabrics formed on a base of paper or covered or lined with paper. The dispute is whether the garments are classifiable as “nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas,” as entered in subheading 6210.10.50, HTSUS, or as other garments of subheading 6210.10.90, HTSUS. Your port liquidated four entries of merchandise on August 12, 2011 as goods of subheading 6210.10.9010, HTSUS, dutiable at 16 percent ad valorem.
ISSUE:
Whether the garments at issue, the PRO 1000 coverall and the PRO 3000 coverall, are classifiable in subheading 6210.10.50, HTSUS, as nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas.
LAW AND ANALYSIS:
Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that “classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order].”
The subheadings at issue are:
Garment, made up of fabric of heading 5602, 5603, 5903, 5906, or 5907:
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
As the classification issue is at the subheading level, we look to GRI 6, which provides:
For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
Counsel has submitted extensive arguments supporting classification of the subject garments in subheading 6210.10.5000, HTSUS, including citing numerous rulings issued by Customs and Border Protection (CBP). Of particular note, on June 22, 2005, this office published a notice of a proposed modification of a ruling letter in which three different disposable coveralls had been classified in subheading 6210.10.50, HTSUS. See 39 Customs Bulletin No. 26, dated June 22, 2005. The ruling, New York Ruling Letter (NY) L80753, dated November 30, 2004, described the coveralls as styles A, B, and C. Style A was made of SMS polypropylene non-woven fabric. This is the same type of fabric used to make the PRO 1000 coverall at issue herein. Style B was made of polypropylene non-woven fabric with a clear polyethylene coating. The PRO 3000 is made of a polypropylene non-woven fabric with a clear polyethylene film applied.
Styles A and B of NY L80753 had full front openings with zipper closures like the garments at issue herein. Similarly, they had long sleeves with elasticized cuffs, while the garments at issue herein have long sleeves with elastic at the sleeve ends to hold the sleeves close at the wrists. The differences between the coveralls described in NY L80753 and those at issue herein are that the former had tight fitting collars and shoe covers, whereas the garments at issue herein have attached hoods with elastic on the edges to hold the hoods close to the head and elastic at the leg bottoms to hold the pants legs close to the body.
CBP withdrew its proposal to modify NY L80753 on September 28, 2005. See 39 Customs Bulletin No. 40, dated September 28, 2005. The reason given for the withdrawal was a detailed review of the physical design features and other properties of the two styles of coveralls, as well as consideration of the one comment received on the proposed modification, which led CBP to find that the two styles were classifiable in subheading 6210.10.50, HTSUS, as designed for use in hospitals, clinics, laboratories or contaminated areas.
Counsel has cited numerous rulings classifying similar garments without shoe covers in subheading 6210.10.50, HTSUS. See NY L80753; NY B88870, dated August 27, 1997; and, NY C80753, dated November 14, 1997, reconsidered in HQ 961505, dated August 29, 1998. See also NY D87654, dated February 25, 1999; and, NY R01171, dated January 12, 2005. Further, in HQ 957117, dated August 1, 1995, CBP stated with regard to non-woven disposable apparel of subheading 6210.10.50, HTSUS:
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.
* * *
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.
Based on an examination of the garments at issue, the information presented by counsel and rulings issued by CBP on substantially similar articles, the coveralls at issue are classifiable in subheading 6210.10.50, HTSUS.
HOLDING:
The protest should be allowed. The coveralls at issue, the PRO 1000 and PRO 3000, are classifiable in subheading 6210.10.50, HTSUS, which provides for, among other things, garments made up of fabrics of heading 5603, nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas, other than of fabrics formed on a base of paper or covered or lined with paper. Goods classified in subheading 6210.10.50, HTSUS, are subject to a Free rate of duty.
In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division