CLA-2 CO:R:C:T 088683 HP
Mr. Charles H. Salzenberg
Account Manager
E.I. DuPont de Nemours & Company
Fibers Department
Laurel Run Building
P.O. Box 80,705
Wilmington, DE 19880-0705
RE: HRL 085360 affirmed. Asbestos coveralls.
Dear Mr. Salzenberg:
This is in reference to your letter of January 17, 1991.
That letter concerned the tariff classification, under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), of spunbonded polypropylene coveralls. Please be aware
that the delay in our response was in part the result of the
Occupational Safety and Health Administration's Final Rule
amending present standards for exposure to asbestos in general
industry and construction. See 57 Fed. Reg. 24310 (June 8,
1992). These standards were considered decisive to your claim.
FACTS:
The merchandise at issue consists of spunbonded
polypropylene coveralls designed for asbestos abatement. In HRL
085360 of December 13, 1989, issued to Latex Glove Co., Inc., we
classified the coveralls under subheading 6210.10.4010, HTSUSA,
as apparel designed for use in hospitals, clinics, laboratories
or contaminated areas, and described the merchandise as follows:
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.
* * *
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.
In your letter of January 17, 1991, you requested that we
reconsider HRL 085360, stating that while the garment design and
construction is adapted for use in contaminated areas, "the
fabric itself, which must provide the primary barrier, remains
very permeable to the passage of asbestos fibers." In support of
this claim, you submitted Determination of the Barrier
Effectiveness of Tyvek~ 1422A, Kleenguard~ BP, and Polybond~ to
Asbestos Penetration, prepared for you by Todd R. Carroll, Arthur
D. Little, Inc., Cambridge, Massachusetts (Arthur D. Little
Reference No. C-608378 (January 1991)), which calculated, among
other things, the following:
TABLE 1. TEST RESULTS
Fabric Thckns/1 Weight/2 sq. Air Permeability/3 % Holdout/4
(mil) (oz/yd sq.) (ft~/ft squared/min) Efficiency
Tyvek 1422A 4.8 +- 0.5 1.19 +- 0.01 < 1.0 98 +- 2
KleenGuard BP9.3 +- 0.5 1.14 +- 0.04 354 +- 21 56 +- 14
PolyBond 11.6 +- 0.4 1.56 +- 0.04 > 704 23 +- 17
FOOTNOTES TO TABLE:
1. Average of five measurements made on each of 15 specimens.
2. Average of 15, 37mm diameter specimens.
3. Average of 15 specimens at 86mm Merrian Red Oil.
4. Mean pooled holdout efficiencies reported at the 95%
confidence interval and at an average mean challenge
concentration of 3.3 +- 0.7 x 107 fibers/L; average of nine
specimens.
Secondly, you are concerned about potential misuse of HRL
085360, in that the ruling will be used by others "in the
asbestos supply industry to ~prove' to potential buyers that the
U.S. Government has ~approved' the use of these garments for
asbestos abatement from a safety point of view."
ISSUE:
Whether the polypropylene coveralls were properly classified
as apparel for use in hospitals, clinics, laboratories or
contaminated areas?
LAW AND ANALYSIS:
In HRL 085360, we held that the instant garment was
classified as "for use in contaminated areas" because it has
design features which adapts it for use in asbestos-contaminated
areas (attached hood with drawstring, attached boots, elastic
closures on wrists), and that the garment is marketed,
advertised, and sold in the asbestos abatement community. This
decision was correct. Although your Barrier Effectiveness test
demonstrated that the "percent holdout efficiency" of PolyBond~
fabric is significantly lower than that of Tyvek~ fabric, this
lower efficiency does not disqualify the instant garment from
classification under the HTSUSA as "designed for use in
contaminated areas." It is well settled that the definition of a
term contained in statute or regulation dealing with non-tariff
matters, such as public safety, does not determine the common
meaning of that term for tariff purposes. International Spring
Mfg. Co. v. United States, 496 F.Supp. 279, 282, 85 Cust. Ct. 5,
Cust. Dec. 4862 (Jul. 2, 1980), aff'd, 641 F.2d 875, 68 CCPA 13,
C.A.D. 1257 (1981) (citations omitted).
Ruling letters issued by the Customs Service interprets and
applies Customs and related laws to a specific state of facts.
Customs and related laws include the Tariff Act, Customs
Regulations, or other legislation or provision administered by
the Customs Service. Determination of exposure limits for
asbestos abatement materials is not within the purview of the
Customs Service. If the instant garment were incapable of being
used in contaminated areas, either the marketplace or the other
government agencies must be the arbiter of its acceptability.
See 57 Fed. Reg. 26002 (June 12, 1992) (OSHA's proposed rule that
skin exposure to, inter alia, asbestos be prevented or reduced to
the extent possible through the use of gloves, coveralls,
goggles, or other appropriate personal protective equipment,
engineering controls or work practice). Accordingly, since we
previously determined that the instant merchandise is advertised
for use in, sold for use in, and used in contaminated areas, HRL
085360 is affirmed.
HOLDING:
As a result of the foregoing, the instant merchandise
remains classified under subheading 6210.10.4010, HTSUSA, as
garments, made up of fabrics of heading 5602, 5603, nonwoven
disposable apparel designed for use in hospitals, clinics,
laboratories or contaminated areas. The applicable rate of duty
is 17 percent ad valorem.
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is imported. If the
documents have been filed without a copy, this ruling should be
brought to the attention of the Customs officer handling the
transaction.
Sincerely,
John Durant, Director
Commercial Rulings Division