CLA-2 CO:R:C:G 085277 KWM
Mr. R. R. McIntyre
DuPont Canada, Inc.
Box 2200, Streetsville
Mississauga, Ontario
L5M 2H3 Canada
RE: Tariff classification of Radiation Protection Apparel
Dear Mr. McIntyre,
This letter is in response to your inquiries dated June 27,
1989, and May 8, 1989, requesting a tariff classification for
radiation protection apparel. Your letters and a sample of the
goods have been forwarded to us by our New York office for a
classification ruling.
FACTS:
A sample of the goods was included with your request. The
sample item is described as "radiation protection apparel" in the
shape of an apron. It is constructed of a back and two front
panels, joined by seams down the sides. The front panels are
held together by a plastic belt which encircles the girth of the
apron. The sample has no sleeves, is of hip length, and is quite
heavy.
Your letters indicate that the sample is composed of several
different materials. The outer surfaces are of a woven textile
material, specifically "PVC coated nylon". The edges and seams
are covered with a flexible plastic strip or edging. Between the
layers of textile is a flexible sheet of a composite material
which you have identified as a mixture of lead, barium tungstate
and ethylene vinyl acetate resin ("EVA resin"). The composite
material is rubber-like in feel and texture, and, with some
effort, can be torn. An approximate breakdown of the composite
materials is as follows:
Material % by weight % by value
Barium Tungstate 55 55
Lead 28 20
EVA resin 15 15
Inner and Outer 2 10
woven textiles
Your letter further states that the lead, barium tungstate
and EVA resin are mixed and processed into a sheet form, which is
then laminated with the woven textile materials. The sheets of
finished material are cut into pieces and assembled into garment
form. This type of good is also available in the shape of coats,
vests, skirts, gonad and thyroid shields. The items are worn by
radiological workers in the health industry in proximity to
patients receiving x-rays.
ISSUE:
What is the proper classification of the merchandise under
the Harmonized Tariff Schedule of the United States Annotated?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the
United States Annotated (hereinafter "HTSUSA") is made in
accordance with the General Rules of Interpretation (hereinafter
"GRI(s)"). The systematic detail of the Harmonized System is
such that virtually all goods are classified by application of
GRI 1; that is, according to the terms of the headings and any
relevant Section or Chapter Notes. Where GRI 1 fails to
determine tariff classification, the remaining GRIs are applied,
in order, to the terms of the headings and subheadings.
In examining the tariff schedule, we note several eligible
headings for classification purposes. Initially, we find only
one chapter which, by its terms, may include goods of this type.
Heading 9022, HTSUSA, provides for, in part:
Medical or Surgical Apparatus, including other parts and
accessories of apparatus based in the use of X-rays or of
alpha, beta or gamma radiation.
If the sample merchandise is considered to be a "part or
accessory" as that term is used in heading 9022, HTSUSA, then it
will be classifiable in that heading. In the opinion of this
office, however, protective apparel of this type is not a "part
or accessory" of heading 9022, HTSUSA. The relevant Explanatory
Notes substantiate our determination by specifically noting that:
The heading does not, however, cover, protective devices
designed to be worn by the operator, such as overalls or
gloves of lead-filled rubber (heading 40.15) or lead-glass
goggles (heading 90.04).
(Emphasis in the original). Although these goods are not "lead-
filled rubber", they are "protective devices", and the intent of
the Explanatory Note is to exclude this type of merchandise.
Failing classification in heading 9022, HTSUSA, we find no
other headings in the nomenclature which include items such as
these in their terms, or in the relevant Section or Heading
notes, in accordance with GRI 1. These goods, therefore, must be
classified by the remaining GRIs, taken in order.
The sample goods in this case are composite goods; i.e.,
they are composed of several different materials. GRI 2
addresses classification of composite goods, and states, in
pertinent part, that:
2(b). . . . Any reference to goods of a given material
or substance shall be taken to include a reference
to goods consisting wholly or partly of such
material or substance. The classification of
goods consisting of more than one material or
substance shall be according to the principles of
Rule 3.
Under GRI 2, this type of merchandise may be classified under
any of the headings which include articles made of any one of the
composite materials. Once these "material-related" headings are
determined, classification is made according to the terms of GRI
3, which states, in pertinent part:
When by application of Rule 2(b) or for any other
reason, goods are, prima facie, classifiable under two or
more headings, classification shall be effected as follows:
(a) The heading which provides the most specific
description shall be preferred to headings
providing a more general description. However,
when two or more headings refer to part only of
the materials or substances contained in mixed or
composite goods . . . those headings are to be
regarded as equally specific in relation to those
goods, even if one of them gives a more complete
or precise description of the goods.
(b) Mixtures, composite goods consisting of different
materials or made up of different components . . .
which cannot be classified by reference to 3(a),
shall be classified as if they consisted of the
material or component which gives them their
essential character, insofar as this criterion is
applicable.
(Emphasis added). Each heading, therefore, which classifies
goods made up of one of the component materials is equally
specific, but that heading which classifies goods made up of the
component that provides essential character is used to classify
the goods.
We note that an essential character determination in this
case further substantiates our decision that these items are not
"parts of accessories" of x-ray devices, as those terms as used
in heading 9022, HTSUSA. The Explanatory Note to heading 4022,
HTSUSA, set out above, indicates that protective devices made of
"lead-filled rubber" are classified in heading 4015, HTSUSA, as
articles of rubber, if the essential character of those items is
provided by the rubber component. The provisions of that note
would suggest, by analogy, that the protective garments in this
case should be classified in that heading which classifies the
component material of essential character in these items.
In the opinion of this office, the essential character of
this type of apparel is conferred upon the article by its
protective features. Without the radiation protection provided
by the mineral and chemical properties of the lead and barium
tungstate elements, this apron's use as protective apparel would
lessen considerably. We note also that the plastic and textile
elements contribute significantly less to the garment by virtue
of either weight or value. Determination of essential character
under GRI 3(b) is not made according to hard and fast rules. The
Explanatory Notes to GRI 3(b) indicate that:
(VIII) The factor which determines essential character
will vary as between goods. It may, for example,
be determined by the nature of the material or
component, its bulk, quantity, weight or value, or
by the role of a constituent material in relation
to the use of the goods.
Of the headings which merit consideration under GRI 3(b),
heading 7806, HTSUSA, "Other Articles of Lead" is the provision
into which these items would fall should the essential character
be determined by the lead. If, however, the component providing
essential character is barium tungstate, then heading 3823,
HTSUSA, "Residual Products of the chemical industry, not
otherwise provided for," would be the proper classification.
This office is of the opinion that, as between lead and barium
tungstate components, it is the barium tungstate element which
provides the essential character of these items. We base this
conclusion on several factors. First, on the basis of the GRI
3(b) Explanatory Note, the weight and value comparison of the
apron components clearly shows that barium tungstate comprises
the majority of the composite material. In addition, we note
that portion of your letter, dated June 27, 1989, which explains
the advantages of using barium tungstate over traditional lead
vinyl sheets in the construction of similar protective apparel.
This replacement of traditional components with more
technologically advanced substances contributes the primary
element of the uniqueness of this item, and thereby provides its
essential character. Therefore, the merchandise is classified in
heading 3823, HTSUSA, as an article of composite material which
is treated as a product of the Chemical and Allied Industries
under the GRIs.
Since none of the subheadings in heading 3823, HTSUSA,
specifically includes or excludes these items, either by the
terms of the subheadings or the relevant Chapter or statistical
notes, they are classified in the "basket" provision of
subheading 3823.90.5050, HTSUSA, as "Other goods."
HOLDING:
The sample items, described as protection radiation apparel,
and whose essential character is determined by the chemical
element barium tungstate, are classified as "Residual Products of
the Chemical and Allied Industries, not otherwise specified or
included: Other: Other: Other: Other: Other", in subheading
3823.90.5050, HTSUSA, and are dutiable at the rate of 5% ad
valorem.
Please note that this classification may be subject to
special treatment under the terms of the United States - Canada
Tree Trade Agreement. You are encouraged to contact your local
U.S. Customs office before importing this merchandise to
determine the current status of any such treatment.
Finally, the sample you submitted with your request is being
retained by this office for future reference.
John Durant, Director
Commercial Rulings Division