HQ 965135

April 15, 2002

CLA-2 RR:CR:TE 965135 ttd

CATEGORY: Classification

TARIFF NO: 6217.10.9530

Port Director

Port of New York

c/o Chief, Residual Liquidation

and Protest Branch

One Penn Plaza,

New York, NY 10019

RE: Application for Further Review of Protest Number 1001-01-102079;
Classification of Disposable Sleeve Protectors

Dear Sir:

This is in response to a protest, timely filed, by Rode & Qualey, on
behalf of their client, Franklin Disposables, Ltd. (Protestant), against
your issuance of a notice to redeliver certain merchandise entered under
subheading 6505.90.8015 of the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). The notice to redeliver indicates that the
merchandise is properly classified under subheading 6217.10.9530,
HTSUSA, which provides for other made up clothing accessories. A sample
was forwarded with the AFR, and, is being returned to you, per your
request, under separate cover.

FACTS:

The items at issue are disposable sleeve protectors made of non-woven
spun-bonded polypropylene fabric that has been coated on one side with
polyethylene plastic. To form the sleeve, the fabric is shaped into a
cylinder and seamed along its length. An elasticized strip is sewn to
the edge of both openings of the cylinder. They measure approximately 16
inches in length.

The Protestant states that the sleeve protectors are used in the
healthcare, food processing and chemical industries, to protect the arms
of workers and to prevent contamination by the arms of workers.

ISSUE:

Whether the subject items are classifiable under heading 6210, HTSUSA,
which provides for garments made up of fabrics of heading 5602, 5603,
5903, 5906 or 5907; heading 6217, HTSUSA, which provides for other made
up clothing accessories; or heading 6307, HTSUSA, which provides for
other made up articles.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General
Rules of Interpretation (GRI). GRI 1 provides, in part, that
classification decisions are to be "determined according to the terms of
the headings and any relative section or chapter notes." In the event
that goods cannot be classified solely on the basis of GRI 1, and if the
headings and legal notes do not otherwise require, the remaining GRI may
then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes
(EN) constitute the official interpretation of the Harmonized System at
the international level (for the 4 digit headings and the 6 digit
subheadings) and facilitate classification under the HTSUSA by offering
guidance in understanding the scope of the headings and GRI. While
neither legally binding nor dispositive of classification issues, the EN
provide commentary on the scope of each heading of the HTSUSA and are
generally indicative of the proper interpretation of the heading. *See*
T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

The competing headings under consideration are heading 6210, HTSUSA,
which provides for garments made up of fabrics of heading 5602, 5603,
5903, 5906 or 5907; heading 6217, HTSUSA, which provides for other made
up clothing accessories; and heading 6307, HTSUSA, which covers other
made up textile articles.

Heading 6210, HTSUSA, provides for garments made up of fabrics of
heading 5602, 5603, 5903, 5906 or 5907. The EN to heading 6210 provide
that the heading **does not include** clothing accessories (e.g.,
gloves, mittens and mitts of **heading 6216**). In Headquarters Ruling
Letter (HQ) 085012, dated August 7, 1989, Customs found that garments
are articles which cover the trunk of the body. [The American Heritage
Dictionary of the English Language: Fourth Edition]{.underline} (2000)
defines \"garment\" as an article of clothing. In HQ 082173, dated
October 2, 1989, Customs referenced Mary Brooks Pickens\' [The Fashion
Dictionary]{.underline} (1973), to define the following:

apparel: Clothing of all sorts; \* \* \* (Page 6)

clothing: Any wearing apparel. (Page 70)

> garment: Any article of apparel, chiefly one made of fabric. (Page
>
> 160).

In [Webster\'s II New Riverside University Dictionary]{.underline}, at
118 (1984), apparel is defined as \"Clothing.\" Thus, according to the
above definitions, the terms apparel, clothing and garment appear
interchangeable.

In HQ 960919, dated July 11, 2001, Customs classified disposable
surgical gowns in heading 6210, HTSUSA, as garments made up of fabrics
of heading 5602, 5603, 5903, 5906 or 5907. Similarly, in HQ 958389,
dated September 7, 1995, disposable coveralls were classified in heading
6210, HTSUSA. *See* *also* HQ 957115, dated April 4, 1995; HQ 088683,
dated June 11, 1993; and HQ 085360, dated December 13, 1989.

The sleeve protectors at issue, unlike the disposable surgical gowns in
HQ 960919 and coveralls in HQ 958389, are not garments. The gowns and
coveralls in those rulings covered the trunk of the body and were
appropriately considered garments of heading 6210, HTSUSA. In contrast,
the subject disposable sleeve protectors do not cover the trunk of the
body, and, accordingly, are not appropriately regarded as articles of
clothing. Considering that the subject sleeve protectors are more
accurately described as clothing accessories and the EN provide that
heading 6210 does not include clothing accessories, the sleeve
protectors are not properly classified in heading 6210, HTSUSA, as
garments made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907.

In a supplemental submission of January 11, 2002, the Protestant
contends that additional U.S. Rule of Interpretation 1(a) and the
factors applied in *United States v. Carborundum Co.,* 63 CCPA98, C.A.D.
1172, 536 F. 2d 373 (CAFC) Cert den., *Carborundum Co v. United States*,
429 U.S. 979 (1976), should be applied here. The Protestant implies that
the subject sleeve protectors are properly classifiable in subheading
6210.10.5000, HTSUSA, as garments made up of fabrics heading 5602, 5603,
5903, 5906 or 5907. We disagree.

Subheading 6210.10.5000, HTSUSA, covers nonwoven disposable apparel
designed for use in hospitals, clinics, laboratories or contaminated
areas. However, as discussed above, the merchandise under consideration
is not apparel, therefore, classification in subheading 6210.10.5000,
HTSUSA, is incorrect. Furthermore, classification of the subject sleeve
protectors must begin at the four digit level and they are properly
classified under the four digit heading that most specifically describes
them. Following the hierarchical system of the HTSUSA, the subject
sleeve protectors must then be classified under the appropriate six and
then eight digit subheadings, and finally under the proper statistical
annotation. Accordingly, before consideration is given to classification
in a subheading within a four digit heading, the subject merchandise
must first satisfy the provisions of that four digit heading. When an
article is precluded from being classifiable within a four digit
heading, it may not then be classified in that heading because a
subheading seems appropriate. In this case, the sleeve protectors are
not garments; therefore, they are not classifiable in heading 6210,
HTSUSA. As the instant merchandise is not properly classifiable at the
four digit level in heading 6210, HTSUSA, it is improper to invoke
subheading 6210.10.5000, as only the four digit headings are comparable.
Moreover, since heading 6210, at the four digit heading level, is not a
\"use provision\", U.S. Rule of Interpretation 1(a) is not binding in
this case, and, the *Carborundum* factors do not apply.

Having precluded classification in heading 6210, HTSUSA, heading 6217,
HTSUSA, provides, in pertinent part, for other made up clothing
accessories. The EN to heading 6217, HTSUSA, specifically includes
\"**sleeve protectors**\" among the merchandise classifiable within the
heading.

While the term \"accessory\" is not defined in the tariff schedule or
the EN, [Merriam-Webster\'s Collegiate Dictionary Online]{.underline},
(2001), defines \"accessory\" as a thing of secondary or subordinate
importance or an object or device not essential in itself but adding to
the beauty, convenience, or effectiveness of something else. In HQ
080498, dated December 28, 1989, Customs ruled that other made up
clothing accessories can cover a wide variety of items, including those
which may be functional as opposed to purely decorative.

In HQ 959672, dated September 20, 1996, Customs classified elasticized
sleeves worn to protect clothing from the wrist to the elbow in heading
6217, HTSUSA, as accessories to a bib apron. *See also* HQ 961737, dated
December 8, 1998 (Sleeve protectors used by welders to protect both
their clothes and bodies from flames during welding were classified in
heading 6217, as accessories to an apron). Moreover, in HQ 961108, dated
September 2, 1999, Customs classified sleeve protectors, nearly
identical to the ones at issue here, in heading 6217, HTSUSA, as other
made up clothing accessories. The sleeve protectors in HQ 961108 were
made of made of spun-bonded olefin for use by hospitals, laboratories,
chemical companies, food processing companies, hazardous waste disposal
companies and in office clerical jobs to protect people from
contaminated areas, hazardous materials, sterilized environments, and
for protection of clothes from stains. Likewise, in HQ 961080, dated
September 14, 1999, sleeve protectors made of a woven nylon base coated
with polyurethane on one side worn to protect factory workers and food
processors from animal fats and chemicals were classified in subheading
6217.10.9530, HTSUSA. *See also* PD B89009, dated September 16, 1997 and
NY E85275, dated August 11, 1999. In HQ 961108 and HQ 961080, Customs
ruled that these kinds of sleeve protectors were used with a garment and
purely functional articles, and, were appropriately classified as
clothing accessories in heading 6217, HTSUSA.

The subject sleeve protectors, like the sleeve protectors in HQ 961108
and HQ 961080, are made of non-woven spun-bonded polypropylene fabric
that has been coated on one side with polyethylene plastic. Moreover,
the subject sleeve protectors are also for use in the healthcare, food
processing and chemical industries, to protect skin and clothing from
the wrist to elbow. The instant sleeve protectors provide a protective
barrier between bare skin (when worn with a short-sleeve shirt) or
sleeves (when worn with a long-sleeve shirt) and the surrounding
environment and prevent contamination by the arms or sleeves and protect
the arms or sleeves from contamination. Accordingly, the instant sleeve
protectors, like those in HQ 961108 and HQ 961080, are functional
articles that augment a garment, namely a shirt. Therefore, the sleeve
protectors at issue are properly classified in heading 6217, HTSUSA, as
other made up clothing accessories.

The Protestant argues that the analysis of HQ 959672 (cited above) does
not apply here and that Customs Headquarters has never considered the
argument that this type of disposable sleeve is not sold or used as an
accessory to any article of clothing, particularly to an apron or bib.
The Protestant further asserts that the sleeve protectors are the
primary article and do not relate to or accessorize another article. We
find these arguments without merit, based on HQ 961108 and HQ 961080
(cited above) and the specific reference to sleeve protectors as
clothing accessories in the EN to heading 6217.

The Protestant contends that the sleeve protectors cited in the EN to
heading 6217, HTSUSA, are garment accessories designed for wear with a
long-sleeved shirt or blouse. The Protestant further asserts that the
subject sleeve protectors are as likely to be worn on the arm directly
over the skin such as with short-sleeves and therefore, are not like the
sleeve protectors listed in the EN. While we acknowledge that the
subject sleeve protectors are as likely to be worn with short sleeves,
we do not find that this factor reduces their likeness with the sleeve
protectors referenced in the EN. The subject sleeve protectors may serve
as accessories to either a short-sleeve or long-sleeve garment;
therefore, they remain accessories to an article of clothing. Moreover,
in HQ 963734, dated March 28, 2001, Customs ruled that knitted cotton
cone-shaped tubular sleeves, which were intended to be worn only with
short-sleeve shirts, were properly classified under heading 6117,
HTSUSA, as other made up clothing accessories. *See also* HQ 961108 and
HQ 961080 (cited above).

Heading 6307, HTSUSA, provides for other made up articles of textile
materials. The EN to heading 6307 state that the heading covers made up
articles of any textile material which are not included more
specifically elsewhere in the tariff schedule. The items under
consideration are more specifically provided for elsewhere in heading
6217, HTSUSA, and therefore are not properly classifiable under heading
6307, HTSUSA.

In his protest letter, the Protestant cites HQ 951844, HQ 961167, and NY
G83136, and asserts that the subject sleeve protectors are classifiable
in heading 6307, HTSUSA, as other made up textile articles. We disagree.
None of the articles in the ruling letters cited by the Protestant were
accessories to clothing, as none of the primary items were articles of
clothing. Therefore, the merchandise considered in those rulings did not
augment an outfit and were not intended for use solely or principally
with a specific article or type of clothing. *See* HQ 951844, dated
September 4, 1992 (headbands and wristbands classified in heading 6307);
HQ 961167, dated November 28, 2000 (textile sunshield used with a hat
classified in heading 6307); and NY G83136, dated October 25, 2000
(disposable beard covers and shoe covers classified in heading 6307).
Therefore, those articles were not properly classifiable in heading
6217, HTSUSA, as clothing accessories. In this situation, the subject
merchandise is intended for use with either a long-sleeve or
short-sleeve garment, an article of clothing, and is therefore a
clothing accessory.

The subject sleeve protectors are purely functional articles that
augment a garment and provide a protective barrier between the bare arms
or shirt sleeves and the surrounding environment and prevent
contamination by the arms or sleeves and protect the arms or sleeves
from contamination. Thus, the subject sleeve protectors are properly
classified in heading 6217, HTSUSA, as other made up clothing
accessories.

HOLDING:

Based on the foregoing, the subject merchandise is classified in
subheading 6217.10.9530, HTSUSA, which provides for \"Other made up
clothing accessories; parts of garments or of clothing accessories,
other than those of heading 6212: Accessories: Other: Of man-made
fibers.\" They are dutiable at the general column one rate at 14.8
percent *ad valorem* and the textile category is 659.

The protest should be denied in full. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive,
dated August 4, 1993, a copy of this decision attached to Customs Form
19, Notice of Action, should be provided by your office to the
protestant no later than 60 days from the date of this decision. Since
there are no reliquidations involved in this protest, you should be able
to accomplish this direction prior to the 60 day period.

Sixty days from the date of this decision the Office of Regulations and
Rulings will take steps to make this decision available to Customs
personnel, and to the general public on the Customs Home Page on the
World Wide Web at www.customs.ustreas.gov, by means of the Freedom of
Information Act and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division