CLA-2 OT:RR:CTF:TCM H095039DSR
Marianna Nardella
GENTEX Corporation
P.O. Box 315, Carbondale, PA 18407
RE: Ruling request concerning tariff classification of a disposable military gas mask
Dear Mrs. Nardella:
This is in response to your request on behalf of GENTEX Corporation (“GENTEX”), dated January 19, 2010, for a binding ruling on the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a disposable gas mask. We have examined the article and our ruling follows.
FACTS:
The subject articles are two disposable gas masks – the Joint Service Chemical Environment Survivability Mask (“JSCESM”) and the “QuickPro” – both described as “commercial-off-the-shelf, lightweight, low bulk, short duration, protective hood/mask capable of providing warfighters or ‘civilian users’ with above the neck respiratory and ocular protection against Chemical, Biological, Radiological, and Nuclear (CBRN) attacks.” GENTEX Product Catalog. The JCSESM is qualified for military use, and it is distributed to “warfighters” of each branch of the United States military. The QuickPro is for use by civilians. Both masks are essentially the same in configuration and functionality. The key components of the QuickPro sample before us are a hood with an integrated visor, nose cup, and physically distinct filter cartridge and neck dam. The non-replaceable filter cartridge is attached to the nose cup inside of the mask via a rigid
tube that is approximately 0.7” in diameter. The filter cartridge itself is approximately 4.5” wide, 3.5” high, and 2” deep. The neck dam is a rubberized, auto-adjusting element that fits snugly around the wearer’s neck and seals the hood’s interior from the external environment. A thin piece of fabric is also included with the mask and is used to aid in forming a seal between the user’s neck and the neck dam. The entire article is designed for one-time use for up to two continuous hours and is disposable. No repair or spare parts are available for either mask.
ISSUE:
Whether the M52 JSCESM and QuickPro disposable gas masks are classified under heading 9020, HTSUS, as a gas mask, or under heading 8421, HTSUS, as filtering or purifying machinery and apparatus for liquids and gases.
LAW AND ANALYSIS:
The following HTSUS provisions are under consideration:
8421 Centrifuges, including centrifugal dryers; filtering or purifying machinery
and apparatus, for liquids or gases; parts thereof:
* * * *
9020 Other breathing appliances and gas masks, excluding protective masks having neither mechanical parts nor replaceable filters; parts and accessories thereof:
* * * *
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely based on GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s 2 through 6 may then be applied in order.
Heading 8421, HTSUS, is found within Section XVI, HTS. General Note 1(m) to Section XVI states that articles of chapter 90, HTSUS are excluded from that section. Thus, if the merchandise is classifiable under chapter 90, HTSUS, it cannot be classified in heading 8421, HTSUS.
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989). The EN to heading 9020 is
instructive as to the scope of coverage of the heading. EN 90.20 (II) explains that gas masks “enable the wearer to breathe in atmospheres polluted by dust, poisonous vapors, smoke, etc., and are therefore used in certain industries, or in warfare (against poison gases).” The typical configuration of such devices is the following:
… a mask, with an arrangement enabling the wearer to see, a metal frame with outlet and inlet valves, and a socket to which is fitted either a filter or a flexible tube connected to a filter system carried on the back or chest. A more simple type protects only the mouth or nose; it consists of a sheath held in place by one or more elastic ribbons, and contains a filtering or absorbent material (asbestos wool, sponge rubber, cotton wadding, etc., which may be impregnated or not) easily replaced after use.
Ibid.
While the exemplars cited in the EN are certainly illustrative of the type of goods classifiable in heading 9020, they cannot be considered exhaustive of devices that are otherwise within the common and commercial meaning of the terms in the 9020 heading text. Although the subject merchandise is not exactly described by the EN, in that it does not contain a metal frame and is entirely disposable, it functions exactly the same as the merchandise described by the EN. It allows its wearer to safely breathe air in atmospheres polluted by chemical vapors, fumes, and airborne biological and radiological particulate hazards.
The common and commercial meaning of a term may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 134, 673 F.2d 1268, 1271 (1982). A gas mask is defined as “a mask connected to a chemical air filter and used to protect the face and lungs from toxic gases.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 2001). The definition of a “gas mask” describes the goods without qualification.
We note that heading 9020, HTSUS, contains a clause that excludes “protective masks having neither mechanical parts nor replaceable filters.” The subject masks do not contain mechanical parts or replaceable filters. However, they are not described by the term “protective masks.” EN 90.20(II) provides, in relevant part, the following exemplars of excluded protective masks:
(a) Masks for protection against dust, odours, etc., not equipped with a replaceable filter, but consisting of several layers of bonded fibre fabric, whether or not treated with activated carbon or having a central layer of synthetic fibres, and masks of textile materials, used by surgeons, nurses, etc., operating upon or attending to a patient (heading 63.07).
(b) Masks for protection against dust or particles of materials, consisting of a simple wire mesh sheath with no filtering device other than a sheet of gauze (Section XV).
The devices described by the EN are only effective against odors and airborne particulates such as dust that cause discomfort or irritation, as well as against contaminants that would be unwelcome in a sterile, medical environment. There is no indication that the exclusion is meant to apply to protective gas masks that offer comprehensive protection against toxic, life-threatening substances such as sarin gas, mustard gas, or nuclear fallout. Therefore, applying GRI 1 to the subject gas mask, we find that the M52 JSCESM and QuickPro disposable gas masks fit the definition of “gas mask” provided for in subheading 9020, HTSUS.
HOLDING:
By application of GRI 1, the M52 JSCESM/QuickPro disposable gas mask is classifiable under heading 9020, HTSUS – specifically under subheading 9020.00.60, HTSUS, which provides for “Other breathing appliances and gas masks, excluding protective masks having neither mechanical parts nor replaceable filters; parts and accessories thereof: Other breathing appliances and gas masks.” The column one, general rate of duty will be 2.5% ad valorem.
Duty rates are provided for your convenience and 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.
Sincerely,
Ieva O’Rourke, Chief
Tariff Classification and Marking Branch