OT:RR:CTF:FTM H299918 YAG
Center Director, Apparel, Footwear and Textiles
Center of Excellence and Expertise
JFK Airport, Team 044-3
U.S. Customs and Border Protection
1100 Raymond Blvd.
Newark, NJ 07102
Attn: Shelley H. Thalrose, Supervisory Import Specialist
RE: Application for Further Review of Protest No. 1703-18-100149; Non-woven disposable apparel
Dear Center Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 1703-18-100149, dated April 23, 2018, and filed by Sandler, Travis & Rosenberg, P.A., on behalf of Northern Safety Co., Inc. (“NSC” or “protestant”), protesting the classification of certain non-woven disposable garments under subheading 6210.10.90 of the Harmonized Tariff Schedule of the United States (“HTSUS”). NSC claims that the imported non-woven disposable garments are designed for use in hospitals, clinics, laboratories or contaminated areas, and are properly classified as entered under subheading 6210.10.50, HTSUS. Two (2) samples were presented to substantiate the protestant’s AFR.
FACTS:
This AFR concerns the classification of non-woven disposable apparel, which consists of various styles of non-woven disposable coveralls, lab coats, smocks, work shirts, and work pants that were classified upon entry under subheading 6210.10.50, HTSUS, as non-woven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas. The entries of merchandise were liquidated by U.S. Customs and Border Protection (“CBP”) as other garments of subheading 6210.10.9010, HTSUS. The products include two lines of protective apparel: the NS® ActivGard® and the NS® Protective Apparel Products. The style names, numbers, and description for the non-woven apparel in NS® ActivGard® line are as follows:
NS® ActivGARD® LT Coveralls (spun bond polypropylene coated with polyethylene) include zipper front closure with covered flap, elastic wrists and elastics ankles;
NS® ActivGARD® XP Coveralls (spun bond polypropylene coated with polyethylene): all of the styles of NS® ActivGARD® XP Coveralls include zipper front closure with covered flap (item 23264 has elastic wrists and elastic ankles; item 23265 has elastic wrists, elastic ankles, and integrated hood with elastic trim; and item 23266 has integrated booties in addition to the design features described above);
NS® ActivGARD® 100 Coveralls (2 layers of spun bond polypropylene, and one layer of melt blown polypropylene) contain zipper front closure with covered flap, and some of the styles include elastic wrists, ankles, integrated hood with elastic trim and booties;
NS® ActivGARD® 200 Coveralls (spun bond polypropylene coated with polyethylene) include zipper front closure with covered flap, and some of the styles include elastic wrists, ankles, integrated hood with elastic trim and booties;
NS® ActivGARD® 300 Coveralls (100% spun bond polypropylene): a sample was provided and described below; and,
NS® ActivGARD® Lab Coats (made out of either 100% spun bond polypropylene or spun bond polypropylene coated with polyethylene) and NS® ActivGARD® Shirts and Pants (spun bond polypropylene coated with polyethylene) feature elastic on the wrists and ankles to keep contaminants off the person wearing the garment.
Protestant states that NS® ActivGARD® coveralls are made from material designed to provide a protective barrier from particulates based on “breathability” of the fabric, and that NS® ActivGARD® garments are designed to provide protection from dust and liquid splash. Additionally, each of the NS® ActivGARD® coveralls are made from spun bond, or a combination of spun bond and melt blown, thermoplastic polymer, polypropylene. Two samples of NS® ActivGARD® coveralls were provided to our office: (1) NS® ActivGARD® 300 Coveralls and (2) unidentified style of coveralls. The NS® ActivGARD® 300 sample submitted possesses the following features: integrated booties, elastic wrist closures, and attached hood with elasticized edges. Additionally, the coveralls contain a zipper closure with covered flap. An unidentified style of coveralls includes elastic on the wrists and boot and zipper closures with the cover flap that protects the zippers (there are no attached hood or booties).
From the submitted information, all of the NS® ActivGARD® coveralls, work shirts and pants in question are marketed as protective apparel, with the primary application in the following industries: assembly applications, fiberglass processing and/or handling, general maintenance, glue and paint spraying, light manufacturing, staining, wood finishing, and food processing. The NS® ActivGARD® lab coats, on the other hand, are marketed as ideal for pharmaceutical and food industries, laboratories and hospitals. For example, see https://www.northernsafety.com/Product/19896/NS-ActivGARD-200-Hood-Elastic-Wrists-Ankles-PolyethyleneCoated-Disposable-Coveralls (last visited June 17, 2019).
The imported NS® Protective Apparel Products consist of NS® Protective Apparel brand Disposable White Pullover Smocks and NS® Protective Apparel brand Disposable Polypropylene Lab Coats. According to protestant, all of the subject smocks are advertised as disposable garments, providing specific design safety characteristics. These characteristics include: material designed and used to provide a protective barrier from contaminants while also allowing maximum breathability and featuring wraparound design for full torso protection without front opening. The smocks also include elasticized wrists to keep contaminants off the person. The NS® Protective Apparel smocks are marketed for sale in the food processing, pharmaceutical, and general cleaning industries. The NS® Protective Apparel lab coats feature snap button closure, open wrists, and extended length sleeves to allow the garment to fit over gloves. These lab coats are advertised as ideal for use in hospitals, clinics, laboratories, food processing, and painting applications.
The protestant states that each of the NS® ActivGARD® products and the NS® Protective Apparel Products are commercially used by employers who must provide Personal Protective Equipment (“PPE”) to their employees to keep them safe from contaminants in certain working conditions, including dust, particulate matter, and liquid splash. According to NSC, based on the design features and marketability of the garments at issue, the NS® ActivGARD® garments and the NS® Protective Apparel Products possess an established commercial acceptability for use as protective attire, described in 6210.10.50, HTSUS.
ISSUE:
Whether the garments at issue are classifiable under subheading 6210.10.50, HTSUS, as non-woven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas or under subheading 6210.10.90, HTSUS, as other garments.
LAW AND ANALYSIS:
Classification decisions under the HTSUS are 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. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The 2018 HTSUS provisions under consideration are as follows:
6210.10 Garments, 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
At GRI 1, there is no dispute that the apparel at issue is classified in heading 6210, HTSUS, as garments made of non-woven fabrics of heading 5603, HTSUS. The dispute arises at the eight-digit level. Therefore, we begin the analysis using GRI 6. The issue 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.
CBP has previously determined that a garment can be classified 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”) 957117, dated August 1, 1995; New York Ruling Letter (“NY”) C80753, dated November 14, 1997; HQ 964179, dated August 10, 2000; HQ H050635, dated July 1, 2009; and, HQ H219220, dated July 18, 2012.
In HQ 957117, 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. CBP 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.
In HQ H219220, CBP considered the classification of two styles of coveralls: one style was made from spun-bond-meltdown-spun-bond (“SMS”) polypropylene non-woven fabric and the second style was made from spun-bond polypropylene fabric weighing 60 grams per square meter which was covered with a clear polyethylene film weighing 30 grams per square meter. The coveralls were described as featuring 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 ran the full length of the torso with a covering flap, and elastic sewn into a rear panel at approximately the waistline. In classifying these coveralls under subheading 6210.10.50, HTSUS, CBP cited NY L80753 and HQ 957117 and concluded that “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 6210.10.50, HTSUS, is proper.”
In HQ H050635, the full length lab coats featured an open collar, long sleeves with open cuffs, and a full front opening with a four snap closure, but lacked the attached boots, hood and elasticized wrist closures of the coveralls discussed in HQ 957117. CBP determined that these garments were classified under subheading 6210.10.50, HTSUS, and noted that 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. See HQ 964179, dated August 10, 2000 (classifying 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); See 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).
Based on an examination of the two samples, 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. Each of the NS® ActivGARD® coveralls are made from spun bond, or a combination of spun bond and melt blown, thermoplastic polymer, polypropylene. Such fabric offers strength, splash, and particle resistance against many hazards. See NY R01171, dated January 12, 2005. In fact, the NS® ActivGARD® garments are designed to provide protection from dust, particular matter, and liquid splash. Therefore, the coveralls imported by NSC provide protection from contaminants. The coveralls at issue also include such design features (depending on the style of the coveralls) as a zipper front closure with cover flap, elastic wrists, elastic ankles, integrated elasticized hood, and/or integrated booties. In addition to the specialized design features, the coveralls are marketed to certain industries, such as assembly applications, fiberglass processing, general maintenance, glue and paint spraying, light manufacturing, staining, wood finishing and food processing, as protective garments. In other words, the marketing, advertising, and sale of the garments are directed toward the particular uses for which the garments are claimed to be designed. Since the coveralls offer protection, and this is established by evidence of commercial acceptance of the coveralls as protective garments, classification under subheading 6210.10.50, HTSUS, is proper.
With respect to NS® Protective Apparel smocks and lab coats and NS® ActivGARD® lab coats, shirts, and pants, we find that these garments are also classifiable in subheading 6210.10.50, HTSUS. All of the subject smocks are advertised as disposable garments, providing specific design safety characteristics. These characteristics include: material designed and used to provide a protective barrier from contaminants and wraparound design providing full torso protection without front opening. The smocks also include elasticized wrists to keep contaminants off the person. The NS® Protective Apparel smocks are marketed for sale in the food processing, pharmaceutical, and general cleaning industries. The NS® Protective Apparel lab coats feature snap button closure, open wrists, and extended length sleeves to allow the garment to fit over gloves. These lab coats are advertised as ideal for use in hospitals, clinics, laboratories, food processing, and painting applications. Similarly, the NS® ActivGARD® lab coats, shirts, and pants provide protection from liquid splash, dust and dirt, with certain garments featuring elastic on the wrists and ankles to keep contaminants off the person wearing the garment. The garments in the NS® ActivGARD® line are also marketed for sale in the food processing, pharmaceutical, and general cleaning industries. Accordingly, on the basis of design features (including the fabric from which these garments are made) and the marketing materials, the classification of NS® Protective Apparel smocks and lab coats and NS® ActivGARD® lab coats, shirts, and pants in subheading 6210.10.50, HTSUS, is proper.
HOLDING:
You are instructed to GRANT the protest. The garments at issue are classifiable in subheading 6210.10.50, HTSUS, which provides for, among other things, garments made up of fabrics or heading 5603, non-woven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas. Goods classified in subheading 6210.10.50, HTSUS, are subject to a free rate of duty.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division