CLA-2 CO:R:C:G 083935 JLJ; 836411

Mr. Malcolm George
Keystone Adjustable Cap Company, Inc.
1591 Hylton Road
Pennsauken, New Jersey 08110

RE: Reconsideration of New York Letter 836411 of February 22, 1989, concerning the tariff classification of a bouffant cap

Dear Mr. George:

You requested a reconsideration of New York Letter 836411 of February 22, 1989, concerning certain bouffant caps from Taiwan. You submitted samples of the caps.

FACTS:

The samples are bouffant caps made of disposable nonwoven man-made polypropylene fibers. We note that polypropylene fibers are considered to be man-made textile fibers for tariff purposes. See Chapter Note 1(a) of Chapter 54, HTSUSA, covering man-made filaments. They have elastic bands sewn in the edge to hold them in place and give them shape. Neither of the caps has a peak nor a visor. They are similar in shape and style to shower caps.

New York Letter 836411 held that the caps were classified under the provision for hats and other headgear, knitted or crocheted, or made up from lace, felt or other textile fabric, in the piece (but not in strips), whether or not lined or trimmed; hair-nets of any material, whether or not lined or trimmed: other: of man-made fibers: other: not in part of braid: other: other, in subheading 6505.90.8075, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), dutiable at the general rate of 8 percent ad valorem plus 22 cents per kilogram. Textile category 659 applies to merchandise classified in this subheading.

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You argue that the caps are used in clinics, laboratories and hospitals and that they should therefore be classified under the specific statistical provision for nonwoven disposable headgear designed for use in hospitals, clinics, laboratories or contaminated areas, in subheading 6505.90.8030, HTSUSA. We note that the general duty rate for this subheading is 8 percent ad valorem, but that no textile category applies to this subheading.

ISSUE:

What is the proper tariff classification of the instant bouffant caps?

LAW AND ANALYSIS:

You argue that this style cap is frequently worn in the operating room of hospitals. You state that this cap is worn in all laboratories, clinics and medical research facilities. You attach copies of invoices to indicate that hospitals, clinics and laboratories do buy these caps. In short, you argue that the instant bouffant caps are designed for use in hospitals, clinics or laboratories and should be classified accordingly in subheading 6505.90.8030, HTSUSA.

Classification of products under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined first in accordance with the terms of the headings and any relative section or chapter notes.

The subject headwear is clearly classifiable in subheading 6505.90.80, HTSUSA, because it is of man-made fiber, not knitted or crocheted or made up from knitted or crocheted fabric, and not in part of braid. We must decide which statistical breakout under subheading 6505.90.80, HTSUSA, applies in order to determine whether this headwear is subject to quota. Subheading 6505.90.8030, HTSUSA, provides for "nonwoven disposable headgear designed for use in hospitals, clinics, laboratories, or contaminated areas," and is not subject to quota. Subheading 6505.90.8075, HTSUSA, provides for all other headwear which is classifiable in subheading 6505.90.80, HTSUSA, and is not "for babies" (subheading 6505.90.8045, HTSUSA). Subheading 6505.90.8075, HTSUSA, is subject to quota under textile category 659.

The language "designed for use in hospitals, clinics, laboratories, or contaminated areas" is identical to the language found in the equivalent provision under the TSUSA, item 703.14.

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Another provision under the TSUSA which uses the same language in connection with nonwoven disposable apparel is item 384.9305, TSUSA. Item 384.9305 is the subject of Headquarters Ruling Letter (HRL) 080056, dated August 27, 1987, which is instructive in its discussion of the "designed for use" language. The merchandise at issue in that ruling was a nonwoven disposable coverall which the manufacturer claimed was principally used in hospitals, clinics, and other health care facilities. Customs determined that the coverall was not eligible for classification in item 384.9305, which provides for nonwoven disposable apparel "designed for use in hospitals, clinics, laboratories, or contaminated areas," because it had no particular features making it suitable for those uses. Instead, it was found that the coverall was a multi-purpose garment which could be used in many different environments, such as homes, yards and garages. This interpretation of a "designed for" tariff provision was set forth in HRL 069099, dated April 7, 1982, which stated that such provisions generally include only articles designed for a single purpose.

In HRL 080056, Customs relied on several court decisions which interpret the "designed for use" language in prior tariff schedules. We look to those court decisions as instructive in interpreting the HTSUSA because (1) the language of subheading 6505.90.8030, HTSUSA, is identical to the language in the equivalent provision under the TSUSA, item 703.14, and (2) there are no provisions in the legal notes of the HTSUSA which require an interpretation of the "designed for use" language which is inconsistent to that used by the courts. See H. Conf. Rep. No. 100-576, 100th Cong., 2nd Sess., 549-50, reprinted in 1988 U.S. Code Cong. & Ad. News 1547, 1582-83.

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 "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

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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. Further, in Stonewall Trading Co. v. United States, 64 Cust. Ct. 482, C.D. 4023 (1970), the Customs Court held that gloves, which were specially designed for use in skiing, were classified in item 734.97, TSUSA, the tariff provision for ski equipment. The court found that the gloves possessed special features which distinguished them from ordinary gloves.

With regard to the instant bouffant caps, we find that they are not classifiable in subheading 6505.90.8030 because they do not have special design features which distinguish them from the same style hats used in beauty salons to enclose the hair and used by employees in restaurants and bakeries to prevent hair and dandruff from falling into food. Hats used for the latter purposes are also constructed to be large so as to enclose all of the wearer's hair. They are designed to be worn for long periods of time and are made of similarly strong nonwoven material which does not allow the passage of hair particles or dandruff.

We note New York letters 825518, dated November 18, 1987, and 829439, dated June 20, 1988, which classified similarly described bouffant style disposable hats in subheading 6505.90.8075, HTSUSA. In New York Letter 829439, the nurse's cap was found not to be designed specifically for use in hospitals. Instead, it was determined that the style of hat was used in hospitals, beauty parlors, and bakeries. Similarly, Customs Headquarters Ruling Letter 081415 of May 2, 1989, classified similar bouffant caps in subheading 6505.90.8075, HTSUSA, because it found no special design features adapting them for use in hospitals, clinics, laboratories or contaminated areas.

The controlling factor for the instant cap is whether the article has design features which peculiarly adapt it for use in hospitals, clinics, laboratories or contamination areas. Inas- much as we find no such special design features in the instant caps, they are not classified in subheading 6505.90.8030, HTSUSA.

We note that on July 1, 1989, new tariff language became effective. Effective July 1, 1989, your bouffant caps will be classified under the provision for hats and other headgear...: other: of man-made fibers: other: not in part of braid: nonwoven disposable headgear without peaks or visors, in subheading 6505.90.8015, HTSUSA. The general rate of duty is 8 percent ad valorem plus 22 cents per kilogram, but no textile category applies to this subheading.

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HOLDING:

For the foregoing reasons, the instant bouffant caps were classified through June 30, 1989, in subheading 6505.90.8075, HTSUSA. Textile category 659 applies to this subheading. New York Letter 836411 is affirmed through June 30, 1989.

On and after July 1, 1989, the instant caps are classified in subheading 6505.90.8015, HTSUSA. New York Letter 836411 is modified accordingly as of July 1, 1989.

Sincerely,

John Durant, Director
Commercial Rulings Division

JLJohnson:tj:typed 07/03/89
6cc: N.Y. Seaport (NIS-349)