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HQ 085277

November 2, 1989

CLA-2 CO:R:C:G 085277 KWM


TARIFF NO.: 3823.90.5050

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.


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.


What is the proper classification of the merchandise under the Harmonized Tariff Schedule of the United States Annotated?


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."


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

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