CLA-2 OT:RR:CTF:TCM H012352 RM
Port Director
Port of Charleston
U.S. Customs and Border Protection
200 East Bay Street
Charleston, SC 29401
RE: Classification of a Disposable Surgeon’s Cap; Internal Advice 07/005
Dear Port Director:
This is in response to the memorandum dated April 26, 2007, from your office, forwarding with comments the Request for Internal Advice, dated February 1, 2007, initiated by Medical Action Industries Inc., regarding the tariff classification of a disposable surgeon’s cap under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The merchandise under consideration is a disposable surgeon’s cap. The cap covers the crown of the head and contains ties at the back. It is composed of 80 percent paper and 20 percent polypropylene fabric by weight. The sides are of a blue, wood/paper material whereas the crown and the ties are of a white, non-woven polypropylene fabric.
ISSUE:
Whether the surgical cap is classified as “safety headgear” in subheading 6506.10.60, HTSUS, or as “other headgear of other materials” in subheading 6506.99.60, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation ("GRIs"). GRI 1 provides, in part, that "for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes[.]" In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.
The HTSUS provisions under consideration are as follows:
6506 Other headgear, whether or not lined or trimmed:
6506.10 Safety headgear:
6506.10.60 Other …
* * *
Other:
6506.99 Of other materials
6506.99.60 Other … …
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to heading 6506, HTSUS, provide, in relevant part:
This heading covers all hats and headgear not classified in the preceding headings of this Chapter or in Chapter 63, 68 or 95. It covers, in particular safety headgear (e.g., for sporting activities, military or firemen’s helmets, motor-cyclists’, miners’ or construction workers’ helmets), whether or not fitted with protective padding or, in the case of certain helmets, with microphones or earphones.
* * *
Requestor argues that the surgical caps are classified in heading 6506, specifically in subheading 6506.10, HTSUS, as “Other headgear, whether or not lined or trimmed: Safety headgear.” She submits that the cap constitutes safety headgear because “[it] serves two safety functions: it protects the wearer from blood borne pathogens and other potentially infectious materials, and it protects the patient from contamination from the health care employee.” She cites New York Ruling Letter (“NY”) K85091, dated May 11, 2004, and NY J81748, dated April 16, 2003, wherein U.S. Customs and Border Protection (“CBP”) classified a padded soccer headband and a water polo cap, respectively, as safety headgear in heading 6506, HTSUS, for the proposition that the term “safety” must be interpreted in the context in which the headgear is worn.
In the alterative, Requestor contends that the subject caps are properly classified in heading 6506, specifically in subheading 6506.99, HTSUS, as “Other headgear, whether or not lined or trimmed: Other: Of other materials.” In support of this argument, she cites NY B80483, dated January 15, 1997, wherein CBP classified chef hats consisting of paper materials under this provision.
We do not dispute that the surgeon’s cap is classified in heading 6506, HTSUS, which provides for: “Other headgear, whether or not lined or trimmed.” CBP has previously defined the term “headgear” as “something, as a hat or helmet that covers the head,” citing Webster’s II New Riverside University Dictionary, (Houghton Mifflin Company, 1988). See Headquarters Ruling Letter (“HQ”) 967820, dated June 16, 2006. The instant surgeon’s cap is intended for that purpose, and it is not provided for elsewhere in the Nomenclature. See EN 65.06. At issue in this case is whether the merchandise constitutes “safety headgear” of subheading 6506.10, HTSUS.
The term “safety headgear” is not defined in the HTSUS or in the legal notes. When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. See Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). "To ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.'" Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 Cust. Ct. 128 (Cust. Ct. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). In addition, the ENs, while not binding law, offer guidance as to how tariff terms are to be interpreted. See Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003) (noting that Explanatory Notes are "intended to clarify the scope of HTSUS subheadings and to offer guidance in their interpretation").
The Oxford English Dictionary (www.oed.com) defines “safety” as “[t]he state of being safe; exemption from hurt or injury; freedom from danger.” CBP has previously defined the term “headgear,” as “something, as a hat or helmet that covers the head.” See HQ 967820. In addition, the ENs to heading 6506 explain that “safety headgear” is used, e.g., for sporting activities, military or firemen’s helmets, motor-cyclists’, miners’ or construction workers’ helmets. The exemplars listed are of a type that protects the head from injury by impact. Taken together, we conclude that “safety headgear” consists of something, as a hat or helmet, which covers the head and protects it from hurt or injury by impact.
The surgeon’s cap at issue is designed for use by health care professionals during surgery. It does not protect the head from hurt or injury by impact. As such, it is precluded from classification in subheading 6506.10, HTSUS, as “safety headgear.” This conclusion is supported by our administrative precedent. See, e.g., HQ 967820, dated June 16, 2006, and HQ 967593, dated August 5, 2005 (safety welding helmets); HQ 966499, dated October 1, 2003, and NY J81748, dated April 16, 2003 (water polo caps with plastic ear protectors); HQ 958120, dated October 18, 1995 (motorcycle helmet); NY K85091, dated May 11, 2004 (padded soccer head-guard); NY F81868, dated February 8, 2000 (worker’s “bump cap”); and NY 815654, dated November 3, 1995 (worker’s hard hat).
Requestor cites NY J81748, dated April 16, 2003 (water polo cap with plastic ear protectors) and NY K85091, dated May 11, 2004 (padded soccer head-guard), to suggest that not all safety headgear is composed of laminated plastics, and that the safety features of the hat are dictated by the purpose for which the hat is worn. We disagree. The water polo cap in NY J81748 was made of a woven nylon fabric coated with PVC on the inner surface and included plastic ear guards designed to protect the wearer’s ears from injury. Likewise, the head-guard in NY K85091 included a layer of foam designed to minimize the risk of head injuries while playing soccer. The merchandise discussed in those rulings protects the head from injury by impact. In contrast, the instant surgeon’s cap does not.
Based on the foregoing, we conclude that the surgeon’s cap is provided for in subheading 6506.99, HTSUS, which provides for: “Other headgear, whether or not lined or trimmed: Other: Of other materials,” because it is not safety headgear.
HOLDING:
By application of GRI 1, the surgeon’s cap is properly classified in heading 6506, specifically in subheading 6506.99.60, HTSUS, which provides for: “Other headgear, whether or not lined or trimmed: Other: Of other materials: Other.” The column one, general rate of duty is 8.5 percent ad valorem.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
You are to mail this decision to the Requester no later than 60 days from the date of the decision. At that time, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division