us-cbp-cross-rulings-hq-084164•HQ 084164: Internal Advice 11/89 concerning the classification of a nonwoven disposable coverall made of Tyvek spun-bonded olefin
HQ 084164: Internal Advice 11/89 concerning the classification of a nonwoven disposable coverall made of Tyvek spun-bonded olefin
us-cbp-cross-rulings-hq-084164HQ 084164: Internal Advice 11/89 concerning the classification of a nonwoven disposable coverall made of Tyvek spun-bonded olefinGuidance
Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.
HQ 084164
September 20, 1989
CLA-2 CO:R:C:G 084164 LS
CATEGORY: Classification
TARIFF NO.: 384.9305
District Director of Customs
Lincoln Juarez Bridge
P.O. Box 3130
Laredo, Texas 78041-3130
RE: Internal Advice 11/89 concerning the classification of a
nonwoven disposable coverall made of Tyvek spun-bonded
olefin
Dear Sir:
This request for internal advice was initiated by a
letter, dated September 28, 1988, from Siegel, Mandell &
Davidson, P.C., on behalf of Texel Industries, Inc. At issue
is entry no. 027-1803097-2, dated June 7, 1988. A sample was
submitted for examination.
FACTS:
The merchandise at issue is a nonwoven disposable
protective coverall (Style 2120-1Z) manufactured of Type 1422A
(nonporous) Tyvek. Durafab, a division of Texel Industries,
Inc., manufactures and imports the garment from Mexico. Tyvek
is a patented material which is manufactured and sold
exclusively by E.I. DuPont De Nemours & Company, Inc.
(hereafter Dupont). Tyvek is a spunbonded olefin which is made
of high density polyethylene fibers which are formed into a
sheet by first extruding continuous strands of very fine,
interconnected fibers and then bonding them together with heat
and pressure to form a virtually impermeable fabric. Type 14
Tyvek is a "soft structure" product which is nonpermeable,
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and may be coated or noncoated. Type 1422A Tyvek is a
noncoated Type 14 material which weighs approximately 1.10 to
1.20 ounces per yard. Dupont also manufactures a Type 16
Tyvek, which is also "soft structure," but is pin perforated
with 10 to 15 mil holes. Type 16 Tyvek allows for the passage
of more water vapor and air than Type 14 Tyvek.
The subject garment, Style 2120-1Z, is a one-piece
coverall with a zippered front, long sleeves, and a collar.
The submitted sample is size extra large. Style 2120-1Z is
also made in sizes small, medium, and large. The sample is
submitted in a plastic bag which contains pictures of a
coverall, labcoat, and two piece garment. The following
statement is included on the bag: "Quality designed produced
and inspected . . . all purpose protective clothing and
accessories." The importer, through its attorney, has informed
us that the plastic bags are used solely for shipping samples
to potential customers and that these packaged samples include
different styles of coveralls, whether or not they are made of
Tyvek. The subject coveralls are shipped in cartons in bulk to
customers. Inside the collar of Style 2120-1Z is a sewn label
which reads, in part: "The dimensions of this garment meets or
exceeds the requirements of ANSI/ISEA 101-1985" [sic]. Durafab
states that this coverall is cut larger than standard cloth
overalls. The "ANSI/ISEA 101-1985" is a standard accepted and
published by the American National Standards Institute which is
intended to provide minimum requirements for finished garment
dimensions, labeling, and packaging of men's limited use and
disposable protective coveralls. Garments which meet the
requirements of the standard provide the user with an assurance
of the minimum level of fit.
Texel Industries, Inc., through its attorney, contends in
the internal advice request that Style 2120-1Z is classifiable
in item 384.9305, TSUSA, which provides for "nonwoven
disposable apparel designed for use in hospitals, clinics,
laboratories, or contaminated areas," and not in item 384.9310,
TSUSA, which provides for "coveralls, overalls, jumpsuits, and
similar apparel," textile category 659. The importer claims
that classification in item 384.9305, TSUSA, is proper because
the garment is specially designed for, and primarily used, in
contaminated areas. Among the most common contaminants which
this garment protects against are asbestos, radioactive dust,
pesticides, and viral agents which have plagued the poultry
industry, such as the Avian flu. Texel Industries, Inc. states
that the subject merchandise is the predominant garment used
for contaminant protection in the asbestos work field. The
garment is also used to protect the environment from
contamination by individuals, such as in clean room
applications and laboratories. When garments made of Type
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1422A Tyvek are used in clean room environments, they are
generally for onetime use, as compared with garments made of a
heavy weight Tyvek (Type 1445), which can be recleaned and
reused a number of times before discarding. We are informed
that although the subject garment may be used in other than
contaminated areas, such as the food handling industry, it is
primarily used to protect workers against toxic chemicals.
The importer claims that the classification of the instant
garment is not governed by Headquarters Ruling Letter (HRL)
080056, dated August 27, 1987, which determined that a nonwoven
disposable coverall made of 100 percent spun-bonded
polypropylene was classifiable in item 384.9310, TSUSA, rather
than item 384.9305, TSUSA. The garment in that ruling was not
found to be designed for use in hospitals because it had no
features which adapted it for that purpose. The ruling
concluded that the garment appeared to be "multi-purpose"
because similar garments were being imported with different
labels indicating non-medical uses such as car maintenance.
The garment appeared to serve the overall purpose of preventing
one's clothing worn underneath from getting dirty. HRL 080056
also compared the garment to another coverall sold by the same
importer. The other coverall was described as "identical,"
except that it was constructed of a different nonwoven fabric,
and was used for dirty industrial jobs. The comparison garment
was made of spun bonded olefin which was described as "Tyvek."
HRL 080056 concluded that the garment at issue could not be
said to be designed for use in hospitals because both it and
the Tyvek garment had exactly the same design and were claimed
to be used for different functions.
Texel Industries, Inc. contends that HRL 080056 is in
error in determining that Tyvek coveralls are multi-purpose
garments. The importer assumes that Headquarters was not
apprised of, and therefore, failed to consider the special
properties of both Tyvek and the protective garments made from
that material. The importer also argues that HRL 080056 is in
error with respect to its classification of the coverall made
of 100 percent spun-bonded polypropylene. Texel Industries,
Inc. reasons that the finding that the coverall could be used
in hospitals, clinics, laboratories or contaminated areas
indicates that it is suitable for such uses and, therefore,
must have been specially designed with particular features
which adapt it for those purposes. The importer's position is
that a highly protective special purpose fabric used in
manufacturing the subject protective garment is one of the most
important features of such a garment, and is evidence that the
garment is designed for use in contaminated areas.
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ISSUE:
Whether the subject coverall is classifiable in item
384.9305, TSUSA, as "nonwoven disposable apparel designed for
use in hospitals, clinics, laboratories, or contaminated
areas," or in item 384.9310, TSUSA, as "coveralls, overalls,
jumpsuits, and similar apparel," textile category 659?
LAW AND ANALYSIS:
Item 384.93, TSUSA, provides for "Other women's, girls',
or infants' wearing apparel, not ornamented: of man-made
fibers: Not Knit: Other: Other: Nonwoven disposable apparel
designed for use in hospitals, clinics, laboratories, or
contaminated areas [statistical breakout 384.9305]; coveralls,
overalls, jumpsuits and similar apparel [statistical breakout
384.9310]; . . . ."
Since the subject garment is classifiable in item 384.93,
TSUSA, we must further determine whether it meets the criteria
for "nonwoven disposable apparel designed for use in hospitals,
clinics, laboratories or contaminated areas," in item 384.9305,
TSUSA, which does not provide for a textile category number.
If it is not classifiable in that provision, then it would be
classifiable in item 384.9310, TSUSA, textile category number
659.
It is established that the subject garment is nonwoven
disposable apparel. The issue that must be decided is whether
it is "designed for use in hospitals, clinics, laboratories, or
contaminated areas." The term "use in contaminated areas" is
not defined in the TSUSA, and there is no legislative history
covering item 384.9305, TSUSA, since this statistical breakout
was administratively created by the "484(e) Committee," which
consists of representatives of the Department of the Treasury,
the Department of Commerce, and the International Trade
Commission and was established pursuant to section 484, Tariff
Act of 1930. There are also no prior rulings which
specifically interpret this term. The term appears to cover
the type of contamination area uses of the subject garment,
i.e., radioactive, pesticide, asbestos, and chemical
contamination, as well as environments where there is bacterial
or viral contamination, such as poultry farms affected by
outbreaks of the Avian flu virus.
There have been several court decisions interpreting the
term "designed for use" or similar language under the TSUSA,
and the Tariff Acts of 1913 and 1930. In United States v.
Faber, 7 Ct. Cust. Appls. 406, T.D. 36980 (1917), the phrase
"designed to be worn on apparel or carried on or about or
attached to the person," found in paragraph 356 of the Tariff
Act of 1913, was interpreted to include only articles that were
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"peculiarly and specially fitted for being carried on or about
the person and devoted to such use." In Plus Computing
Machines, Inc. v. United States, 44 CCPA 160, C.A.D. 655
(1957), the court held that the phrase found in paragraph 372
of the Tariff Act of 1930, i.e., "specially constructed for" a
particular purpose, when used in reference to an article, means
that the article includes particular features which adapt it
for that purpose. The court noted that the purpose need not be
the sole or principal one served by the article. The court
held that a machine with structural features which served the
specific purpose of enabling it to multiply and divide and
which incorporated those features solely for that purpose was
"specially constructed for multiplying and dividing." This
machine was clearly distinct from one designed for no purpose
other than addition or subtraction.
In American Astral Corp. v. United States, 62 Cust. Ct.
563, C.D. 3827 (1969), the Customs Court held that certain
gloves which were shown to be specially designed for use in the
game of tennis were properly classifiable as lawn tennis
equipment. Among the factors considered by the court were:
(1) the unique features incorporated in the gloves, such as a
terry cloth backing and a lambskin palm designed to absorb
moisture, which were not found in other types of sporting
gloves or dress gloves; (2) the nature of the importer's
business; (3) how the gloves were advertised in the trade; (4)
the types of stores where the gloves were sold;
and (5) how the gloves were packaged. The court noted that the
fact that the gloves had other possible uses did not preclude
their classification as sporting equipment.
In another sports glove case, Sports Industries, Inc. v.
United States, 65 Cust. Ct. 470, 473, C.D. 4125 (1970), the
court held that "whether an article is 'specially designed' or
'specially constructed' for a particular purpose may be
determined by an examination of the article itself, its
capabilities, as well as its actual use or uses." The court
found that gloves which were made of a non-porous rubber
material were designed for use in the sport of skin diving or
scuba diving to protect the hands and to keep them warm, and
were therefore classifiable as gloves specially designed for
use in sports rather than as other rubber gloves. The record
showed that those gloves were used primarily, if not
exclusively, in the sport of underwater swimming, and were not
suitable for any other practical use. In Porter v. United
States, 76 Cust. Ct. 97, C.D. 4641 (1976), the court found that
certain gloves were specially designed for use in the sport of
motocross racing, even though they were not used exclusively
for that sport. One of the expert witnesses testified that
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although the motocross gloves would increase protection in
ordinary motorcycle riding, the street rider would find the
gloves to be uncomfortable because they offered no protection
from the cold. In addition, another expert testified that the
gloves at issue were of the type that would comply with the
American Motorcycle Association Motocross Competition Rule
Book's requirements for certain protective clothing and
equipment, which included gloves.
In deciding whether an article is classifiable in a
"designed for use" provision, the controlling factor, as
reflected in the above court decisions and in HRL 080056 and
081415, is whether the article has particular features which
adapt it for the stated purpose. In HRL 081415, dated May 2,
1989, Customs determined that certain bouffant-style hats were
not classifiable as nonwoven disposable headgear designed for
use in hospitals, clinics, laboratories, or contaminated areas
because they had no special design features which distinguished
them from the same style caps used in other environments.
The two main characteristics of the subject coverall
which the importer claims are special design features are the
use of Tyvek material, which has superior barrier and chemical
resistance properties, and the garment's unique fuller-body
size and shape. The latter feature is said to distinguish the
coveralls from general purpose cloth coveralls. Texel
Industries, Inc. claims that the instant garment is specially
designed to fit loosely over general purpose cloth coveralls,
and meets the American National Standard size and labeling
requirements for men's limited use and disposable protective
coveralls.
The evidence presented by the importer indicates that the
Type 14 Tyvek used to make the subject coverall has unique
properties which make it designed for use in contaminated
areas. Dupont states that Tyvek was developed in 1967
specifically as a protective material for hazards like
asbestos. Texel Industries, Inc. has submitted several
independent laboratory studies which were conducted for the
purpose of determining the specific suitability of Tyvek, and
garments manufactured therefrom, for use in protecting workers
against specific hazards and contaminants. The laboratory
tests analyzed the effectiveness of Tyvek in protecting against
penetration by asbestos fibers, radioactive particulates,
fiberglass, and carbaryl pesticide dust.
One of the unique properties of Type 14 Tyvek which makes
it designed for use in contaminated areas is its
impermeability. The superior barrier properties of Tyvek are
attributed to the manufacturing process of bonding the fibers
with heat and pressure. With respect to its effectiveness as a
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barrier against asbestos, studies conducted for Dupont have
shown that Type 14 Tyvek blocks the penetration of over 99
percent of asbestos fibers that are less than 0.5 microns in
diameter. Tyvek is compared with 1.5 oz. "air permeable"
SB/Meltblown polypropylene fabric which blocks the penetration
of only 73.9 percent of such fibers. According to Dupont and
the National Institute of Occupational Safety and Health, these
small fibers make up a large percentage of airborne asbestos
and are the most active in producing cancerous tumors. With
respect to carbaryl pesticide dust, Tyvek 1422A is greater than
97 percent effective as a barrier after four hours of
pressurized exposure to particles as small as .6 microns.
Another property of Tyvek which makes it suitable for use
in contaminated areas is its chemical resistance. This
characteristic is attributable to the chemical properties of
the polyethylene fibers. Dupont states that Tyvek is resistant
to most organic and inorganic chemicals and inert to most
acids, bases, and salts. It provides splash protection because
its continuous polyethylene fibers are non-absorbent and
essentially inert. Dupont supplies a chemical permeation guide
for various Tyvek fabrics, which shows the breakthrough time
and permeation rates of various chemicals. Tyvek 1422A, which
is an uncoated Tyvek, appears to be most effective against dry
particulates such as asbestos and carbaryl pesticide dust.
Further protection against hazardous liquid chemicals is
provided by coated Tyvek material, such as polyethylene coated
Tyvek or Saranex laminated Tyvek.
The literature submitted by Texel Industries, Inc. also
states that Tyvek's relatively slick polyethylene surface acts
as a further barrier against particle entrapment. Tyvek has
high tensile/tear strength in all directions because its
continuous fibers are spunbonded in all directions. It keeps
this strength whether it is wet or dry. Tyvek also has good
puncture and abrasion resistance, and is said to stay tough and
flexible down to -100 degrees Fahrenheit.
Based upon the evidence presented, we find that the
importer has shown that the use of Type 14 Tyvek, a highly
protective special purpose fabric, is a special design feature
of the coverall at issue.
Another feature of Style 2120-1Z is the use of serged
seams, which is a type of seam commonly utilized in the
manufacture of protective apparel. The serged seams are
produced with a rolled edge which exposes fewer needle holes
for penetration by small particulates and which also serves to
tighten and strengthen the seam under stress.
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It should be noted that although Style 2120-1Z does not
have an attached hood or shoe cover, it is usually worn with
these separate accessories, which are sold by Durafab and
usually taped to the garment. Durafab does sell another style
garment which has attached shoes and a hood.
As to the garment's fuller-body size and shape, which
makes it designed to fit loosely over general purpose cloth
coveralls, we are not convinced that this is a special design
feature which distinguishes it from general purpose coveralls.
We acknowledge that the American National Standard, which
applies to men's limited use and disposable protective
coveralls, assures a minimum level of fit. We are told that
the fit of a protective garment can affect safety. However, it
appears that at least some general purpose coveralls are also
designed to be worn over other apparel.
The importer's statement that the subject garment is
accepted and recommended as personal protective apparel by the
Environmental Protection Agency (EPA), the Occupational Safety
and Health Administration (OSHA), and the National Institute of
Occupational Safety and Health (NIOSH) is further evidence that
it is designed for use in contaminated areas. The OSHA
standards with respect to exposure to asbestos and other toxic
and hazardous substances 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. The importer has
submitted information from the Mine Safety Appliances Co.,
which manufactures and distributes occupational health and
safety equipment. That information, which is provided to
customers to help them comply with OSHA asbestos standards,
lists disposable Tyvek clothing as one of the "suggested and
acceptable" products.
In addition to these governmental standards, Texel
Industries, Inc. has submitted a portion of the Safety
Equipment Institute's Certified Product List for Personal
Protective Equipment which mentions the subject coveralls under
the section for men's limited use and disposable coveralls.
The importer has also submitted Guidelines for the Selection of
Chemical Protective Clothing prepared for the U.S. Coast Guard
which lists the subject garment, by code, as meeting those
guidelines.
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Texel Industries, Inc. has also presented substantial
evidence regarding the marketing of Tyvek by Dupont and its own
marketing of the subject coverall and other Tyvek coveralls.
We find that this evidence further supports the contention that
the coveralls are designed for use in contaminated areas. For
example, Dupont states that between 95 to 99 percent of soft
structure Tyvek styles are sold directly to apparel
manufacturers to be made into protective clothing used in
hazardous, toxic, or barrier/clean room environments on a one-
time use basis. Most of the remaining soft structure Tyvek is
used in the manufacture of clothing in limited use areas where
the concern is to prevent contamination of undergarments or
work clothes with substances that are not carcinogenic. Less
than 1 percent of such Tyvek is said to be used for other than
safety/barrier purposes.
With respect to marketing of the coveralls, Durafab states
that it designs and manufactures a broad range of protective
clothing and accessories which it sells through safety
representatives to distributors. Protective clothing is
defined by the American Society for Testing and Materials as
"any material or combination of materials used in an item of
clothing for the purpose of isolating parts of the body from
direct contact with a potentially hazardous substance."
Durafab's engineers and trained personnel specially design
garments. They advise industrial hygienists or other safety
personnel employed by end users as to the most appropriate
protective garment for a particular job. The type of material
used (such as Type 14 Tyvek, Type 16 Tyvek, laminated Tyvek, or
other nonwoven material) and the design of the garment is
dependent upon the nature of the contaminant to which the
wearer is exposed. Durafab often designs garments to fit a
particular industry. As noted above, the instant coverall is
the predominant garment used for contaminant protection in the
asbestos work field.
Texel Industries, Inc. has also submitted statements from
various health and safety equipment distributors, trade
associations, and end users, including federal government
laboratories, who agree that Tyvek disposable protective
coveralls are well recognized as being designed and well suited
for use in the types of contaminated areas described by Texel
Industries, Inc. in its submission. There is a consensus in
these statements that Tyvek protective coveralls are generally
not used as general purpose garments to protect against dirt
and grime, and are not interchangeable with such garments.
Most of the submitted statements compare Tyvek garments to
general purpose coveralls made of cotton or woven man-made
fiber. Because Tyvek garments do not "breathe," they are
described as extremely uncomfortable, as compared to
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cloth coveralls which are cooler and less constricting. Due to
this factor, a director of a hazardous waste program at a
university research institute states that a Tyvek coverall
would not be worn unless it was absolutely required to protect
against contamination. One of the supply companies states that
although the initial cost of a single Tyvek disposable garment
is less than that of a cotton coverall, the cost of purchasing
such disposable garments on a routine basis would rapidly
exceed the purchase price, combined with the laundering costs,
of a reusable garment. Although these statements compare Tyvek
garments to cloth coveralls, some of the comparisons also apply
to other nonwoven disposable clothing. For example, the
coverall made of 100 percent spun bonded polypropylene, which
was ruled upon in HRL 080056, was air permeable and therefore
more comfortable to wear than a garment made of Type 14 Tyvek.
Because the polyethylene fibers which compose Tyvek undergo a
special heat and pressure treatment process, Tyvek garments are
likely to be more expensive than the 100 percent spun bonded
polypropylene garments, which are not subject to this process.
Texel Industries, Inc. has also presented substantial
evidence indicating that its advertising is directed toward
protective garment users and is specifically aimed at
industrial hygienists and safety engineers.
Although the Tyvek protective coveralls manufactured and
sold by Durafab, including the instant coverall, are primarily
used to protect workers against hazardous or toxic chemicals,
these garments are also claimed to meet the design criteria for
use in hospitals, laboratories, and other "clean room"
applications. Coveralls and two-piece garments made of Tyvek
are worn by hospital workers as protection from hazardous
chemicals used in patient treatments and in the preparation and
application of these chemicals. The garments also afford
protection from chemical waste and human waste. In addition,
they are worn by hospital laundry workers and other hospital
workers who clean areas where contaminants are found.
We next address the importer's claim that the
classification of the instant protective Tyvek coverall, Style
2120-1Z, should not be predicated upon HRL 080056. HRL 080056
found that the coverall made of 100 percent spun bonded
polypropylene could not be said to be designed for use in
hospitals because it did not have particular features which
adapted it for that purpose. The ruling compared that coverall
to another coverall sold by the same company, which was "of
identical configuration," made of a different nonwoven
material, i.e., Tyvek, and intended for dirty industrial
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jobs. It was reasoned that the coverall made of 100 percent
spun bonded polypropylene could not be said to be designed for
use in hospitals because both garments had exactly the same
"design" and were claimed to be used for different functions.
We do not modify HRL 080056 as to its result because,
based on the evidence provided, we found that the subject
coverall did not have particular features which made it
designed for use in hospitals. However, we find that HRL
080056 was too narrow in its interpretation of item 384.9305,
TSUSA, in that it focused on the similarities in configuration
or shape between the subject coverall and the Tyvek coverall,
and attached little, if any, significance to the differences
between the fabrics composing each garment. It was evident in
American Astral Corp. v. United States, supra, and Sports
Industries, Inc. v. United States, supra, that the type of
material used in manufacturing a product can be considered a
special design feature.
In HRL 080056, the importer submitted a sample of the
Tyvek material used to make the Tyvek garment. Our laboratory
analysis of the sample reveals that the fabric is a Type 14
Tyvek. The 100% spun bonded polypropylene which comprised the
garment claimed to be designed for use in hospitals in HRL
080056 differs considerably from the sample Type 14 Tyvek
submitted in that case. First, it is made of polypropylene
while Tyvek is made of polyethylene. However, more
importantly, a laboratory microscopic analysis of the
polypropylene material indicates that there has been no heat
treatment after the spunbonding process. Thus, the
polypropylene material is not subjected to the same heat and
pressure treatment as the polyethylene used in Tyvek.
Consequently, the 100% spun bonded polypropylene is less
durable and is air permeable, which makes it highly
"breathable." In addition, when the polypropylene is wetted,
it absorbs water, while the Tyvek does not allow the
penetration of water or water-borne contaminants. Because the
garment made of 100% spun bonded polypropylene is permeable, it
would not provide the barrier protection needed when the wearer
is exposed to hazardous substances or contaminants.
A further examination of the Type 14 Tyvek material
submitted in HRL 080056 shows that it is thinner than the Type
14 Tyvek used to make the coverall in the instant case. We are
informed by our Office of Laboratories and Scientific Services
that the thickness of the Tyvek only affects the puncture
resistance of the material. Since both Tyvek materials appear
to be equally effective in providing barrier protection against
hazardous contaminants such as asbestos, radioactive dust and
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pesticides, we find that HRL 080056 was in error to the extent
that it suggests that a coverall made of the submitted Type 14
Tyvek material is only for dirty industrial jobs, and therefore
is not "designed for use" in contaminated areas. Literature
from Dupont was submitted in HRL 080056 which mentions the
varied industrial uses of Type 14 Tyvek clothing. Most of
those uses relate to safety applications, such as use with
asbestos, radioactive contaminants, lead dust, PCB, and
pesticide sprays. The literature also mentions use of Type 14
Tyvek for dirty job applications, such as for spray painting,
sandblasting, and routine inspection. Type 16 Tyvek, which is
of microporous construction, thereby allowing the fabric to
breathe, is generally indicated for dirty job applications.
We also find that HRL 080056 was in error to the extent
that it infers that a garment which has multiple uses cannot be
considered "designed for use in hospitals, clinics,
laboratories, or contaminated areas." The fact that a garment
could be used in general industrial, business, or home
environments, as well as in hospitals, should not be the
determinative factor in deciding that it is not classifiable in
item 384.9305, TSUSA. As discussed above, in American Astral
Corp. v. United States, 62 Cust. Ct. 563 (1969), the Customs
Court found that the fact that the subject glove had possible
uses other than in the game of tennis did not preclude its
classification as sporting equipment. In Plus Computing
Machines, Inc. v. United States, supra, the court held that the
phrase "specially constructed for" a particular purpose did not
mean that that purpose must be the sole or principal one served
by the article. As stated in HRL 081415, the controlling
factor is whether the article has design features which
peculiarly adapt it for use in the environments specified in
the applicable tariff provision. If such features exist, the
fact that the article can conceivably be used, and is used, in
other environments does not negate a finding that it is
"designed for use" in hospitals, clinics, laboratories, or
contaminated areas. We, however, disagree with Texel
Industries, Inc.'s contention that actual use of the subject
garment in contaminated areas leads to a presumption that the
garment is designed for use in such areas. An importer has the
burden of showing that the article has special design features
which adapt it to those uses.
We find that the importer, Texel Industries, Inc., has met
that burden based on the evidence summarized above. In
addition to the special design features, the importer has shown
that the marketing, advertising, and sale of the garment are
all directed toward uses which qualify as "contaminated areas,"
as that term is used in item 384.9305, TSUSA. Therefore, the
subject coverall is found to be "designed for use" in
contaminated areas for purposes of classification in item
384.9305, TSUSA.
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HOLDING:
For the foregoing reasons, the subject coverall, Style
2120-1Z, is classifiable in item 384.9305, TSUSA. The 1988
rate of duty is 17 percent ad valorem. Under the Harmonized
Tariff Schedule of the United States, this coverall is
classifiable in subheading 6210.10.4010, which provides for
"nonwoven disposable apparel designed for use in hospitals,
clinics, laboratories, or contaminated areas." Our ruling is
limited to this coverall, which is made of Type 14 Tyvek, and
would not apply to a coverall made of Type 16 Tyvek which
allows the penetration of certain contaminants. Pursuant to 19
CFR 177.9(d), HRL 080056, dated August 27, 1987, is modified in
accordance with the foregoing analysis.
Sincerely,
John Durant, Director
Commercial Rulings Division
schreiber library 084164LS
6cc: Area Director, New York Seaport
2cc: Chief, CIE
1cc: Regional Commissioner, Houston Texas
1cc: Regulatory Trade Programs Division 1328
LSchreiber:jaj:8/24/89
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