CLA-2 OT:RR:CTF:TCM H135337 DSR
Port Director, Long Beach Seaport
U.S. Customs and Border Protection
301 E. Ocean Blvd, Suite 1400
Long Beach, CA 70112
ATTN: Import Specialist David Nishinaka
RE: Application for Further Review of Protest No. 2704-10-101788; welding face mask
Dear Port Director:
This is in response to your memorandum dated October 29, 2010, forwarding with comments the Application for Further Review (“AFR”) of Protest No. 2704-10-101788, filed on behalf of Save Phace, Inc. (hereinafter “Protestant“). At issue is the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of a welding face mask.
FACTS:
The merchandise in question is a welding face mask made of plastic. In its imported condition, it lacks its crown bracket and darkening lens. The crown bracket is used to secure the mask to a wearer’s head. There is a cut out for the lens, and holes on either side of the mask for attaching the crown bracket, which encircles the crown of the head. The article, as imported, covers the face, ears, forehead, neck, sides and top front crown of the head.
The merchandise was entered on July 22, 2009. It was liquidated on February 19, 2010. U.S. Customs and Border Protection (“CBP”) has classified the article in subheading 3926.90.99, HTSUS, as other articles of plastic. Protestant believes that
the proper classification to be subheading 6506.10.60, HTSUS, which covers safety headgear.
ISSUE:
Whether the merchandise is classified under heading 3926, HTSUS, as an article of plastics, or under subheading 6506, HTSUS, as other headgear.
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and duty assessment. The protest was timely filed on August 9, 2010, and thus within 180 days of liquidation of the subject entries. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further review is properly accorded to the protest pursuant to 19 C.F.R. § 174.24(a). Specifically, Protestant alleges that the decision against which the protest was filed is inconsistent with a prior ruling issued by the Commissioner of CBP, or his designee. We address this allegation below.
The HTSUS (2009) provisions under consideration in this case are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901
to 3914:
* * *
3926.90 Other:
* * *
3926.90.99 Other.
* * * *
6506 Other headgear, whether or not lined or trimmed:
6506.10 Safety headgear:
* * *
6506.10.60 Other.
* * * *
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order. GRI 2(a) provides in pertinent part that "[a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled." Also, Note 2(q) to Chapter 39, HTSUS, excludes Articles of section XII (for example, footwear, headgear, umbrellas, sun umbrellas, walking-sticks, whips, riding-crops or parts thereof) from that chapter (emphasis added).
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although neither dispositive nor 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 ENs to heading 6506, HTSUS, provide, in pertinent 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, motorcyclists’, miners’ or construction workers’ helmets), whether or not fitted with protective padding or, in the case of certain helmets, with microphones or earphones.
We first note that Protestant asserts CBP’s classification of the subject facemasks is inconsistent with a prior ruling issued to it – NY N107297, dated June 16, 2010. In that ruling, we classified complete paintball and safety helmets in subheading 6506.10, HTSUS, as safety headgear. However, the subject face mask is imported incomplete. Therefore, we find that Protestant’s reliance on NY N107297 to be misplaced.
The term “headgear” is neither defined in the tariff nor in its legislative history. When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. Mita Copystar America v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod America Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). Relying on the common meaning of the term, CBP has previously defined the term "headgear" as "something, as a hat or helmet that covers the head," See Headquarters Ruling Letter ("HQ") H012352, dated February 4, 2009 (citing Webster’s II New Riverside University Dictionary (Houghton Mifflin Company, 1988)). The term "head" is defined in the American Heritage College Dictionary (Houghton Mifflin Company, 1993) as "the uppermost or forewardmost part of the body of a vertebrate, containing the brain and the eyes, ears, nose, mouth and jaws." See HQ 867593, dated August 5, 2005.
As imported, the subject welding face mask covers the face, ears, forehead, neck, sides and top front crown of a wearer’s head. Therefore, we find that the subject face mask fits the definition of “headgear” and is classifiable in heading 6506, HTSUS, as other headgear. Inasmuch as the article is classifiable under heading 6506, HTSUS, its classification under heading 3926, HTSUS, is precluded by virtue of Note 2(q) to Chapter 39, HTSUS. What remains at issue is whether the helmets are classifiable in subheading 6506.10, HTSUS as “safety headgear.”
The term "safety headgear" is not defined in the HTSUS or in the legal notes. Drawing upon the common meaning of the term, we note that 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, supra. 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 safety warning label adhered to the inside of the face mask states that it is designed to protect the wearer’s head “against impact, sparks, splatter and rays from welding or cutting. It is not meant to provide unlimited face and eye protection.” The mask’s user is also instructed to always use impact resistant eye protection such as safety goggles and spectacles, in addition to always use the proper shade of filter lens. Had the subject articles been imported complete, with darkening lenses and crown brackets, our analysis could end here, as the articles would easily be classified pursuant
to GRI 1 under subheading 6506.10, HTSUS, as safety headgear. See, e.g., HQ 967820, supra. However, that is not the case.
GRI 2(a) states that “… any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the completed or finished article …” The longstanding position of CBP is that the term "essential character" for purposes of GRI 2(a) means the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. See HQ H013671, dated January 16, 2009 (citing HQ 956538, dated November 29, 1994). The essential character for purposes of GRI 2(a) is determined on a case-by-case basis based on the nature of a given article.
In its imported condition, the face mask lacks a filtering lens and crown bracket. Even without those items, we conclude that the face mask is readily identified as one for safety, as it still serves to protect most the wearer’s head. Indeed, the core functions of the mask are clearly stated on its warning label – to protect against impact, sparks, splatter and rays. Even though the wearer of the mask is instructed to always use a filtering lens with the mask, it is worth noting that the wearer is also instructed to use impact resistant eye protection such as safety goggles and spectacles in addition to the lens. From that, we are drawn to conclude that the core function of the mask is to protect the head from the impact of various harmful substances or items, with the filtering lens providing supplementary benefit of filtering harmful light rays from the wearer’s eyes. Similar logic applies to consideration of the lack of the crown bracket. The crown bracket functions to secure the face mask to the user’s head -- it does not serve to protect the user in any way, and the face mask is still be readily identified as something that serves to protect the face against impact. Thus, we find that the merchandise as imported has the essential character of a welding face mask and is, therefore, classified in subheading 6506.10, HTSUS, as safety headgear.
HOLDING:
Pursuant to GRI 1 and GRI 2(a), the welding mask is classifiable under subheading 6506.10.60, HTSUS, which covers “Other headgear, whether or not lined or trimmed: Safety headgear: Other.” The column one, general rate of duty at the time of entry was “Free.” You are instructed to ALLOW the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website located 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