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HQ 957827




July 18, 1995

CLA-2 R:C:M 957827 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9004.90.00

District Director
U.S. Customs Service
111 W. Huron Street, Rm. 603
Buffalo, NY 14202-2378

RE: Protest 0901-95-100215; Goggles; Explanatory Notes 90.04 and 90.20; Chapter 90, Note 2(a); 9020.00.60; 9020.00.90

Dear District Director:

The following is our decision regarding Protest 0901-95-100215 concerning your action in classifying and assessing duty on goggles under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of goggles (model no. MXP210-00 AMDT:A), designed to protect the wearer's eyes from smoke and toxic gases on the flight deck of a civil aircraft. Provided literature indicates that the goggles have a wide-angle lens equipped with an adjustable extra-wide headband. The lens of the goggles is made of high-grade optics with an anti-scratch coating on the outside surface, and an anti-fog coating on the inside surface. The goggles are designed to fit over prescription eyeglasses and may be worn with certain mask regulators. During use, the mask regulator is placed on the head, and then the goggles, which are separate from the mask regulator, are placed on the head.

The goggles were entered under subheading 9020.00.60, HTSUS, as other breathing appliances and gas masks. The entries were liquidated on November 4 and December 2, 1994, under subheading 9004.90.00, HTSUS, as goggles. The protest was timely filed on January 31, 1995.

ISSUE:

Whether the goggles are classifiable under subheading 9020.00.60, HTSUS, as other breathing appliances and gas masks, under subheading 9020.00.90, HTSUS, as parts of other breathing appliances and gas masks, or under subheading 9004.90.00, HTSUS, as goggles.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's).
GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

The subheadings under consideration are as follows:

9020.00.60: [o]ther breathing appliances and gas masks, excluding protective masks having neither mechanical parts nor replaceable filters: parts and accessories thereof: [o]ther breathing appliances and gas masks.

The general, column one rate of duty for goods classifiable under this provision is 3.7 percent ad valorem.

9020.00.90: . . . : [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 3.7 percent ad valorem.

9004.90.00: [s]pectacles, goggles and the like, corrective, protective or other: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 7.2 percent ad valorem.

The goggles do not constitute a breathing appliance, as they have nothing to do with the wearer's breathing. However, we must decide whether they constitute a gas mask. In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive or legally binding, 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). In part, Explanatory Note 90.20 (p. 1496) states:

(II) GAS MASKS

These enable the wearer to breathe in atmospheres polluted by dust, poisonous vapours, smoke, etc., and are therefore used in certain industries, or in warfare (against poison gases).

In these appliances air for breathing comes directly from the outside and is passed through a filtering device which absorbs poison gases or retains dust. They therefore consist essentially of 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 and the 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 after use.

The subject goggles are not similar to any of the exemplars given in Explanatory Note 90.20. In their condition as imported, the goggles do not assist the wearer in breathing, nor do they possess any filtering apparatus. The mask regulator is responsible for that function, and the goggles are separate from and are not integral to the mask regulator. Therefore, the goggles are precluded from classification under subheading 9020.00.60, HTSUS, as other breathing appliances and gas masks.

In part, Explanatory Note 90.04 (p. 1462) states that:

[t]his heading covers articles (usually comprising a frame or support with lenses or shields of glass or other material), for use in front of the eyes, generally intended either to correct certain defects of vision or to protect the eyes against dust, smoke, gas, etc., or dazzle; it also covers spectacles for viewing stereoscopic (three- dimensional) pictures.

The goggles are designed to protect the wearer's eyes from smoke and toxic gases on the flight deck of a civil aircraft. Consequently, based upon the description given in Explanatory Note 90.04, it is our position that the goggles are classifiable under subheading 9004.90.00, HTSUS, as goggles.

As an alternative, the protestant claims that the goggles are classifiable under subheading 9020.00.90, HTSUS, as parts of other breathing appliances and gas masks.

Chapter 90, note 2(a), HTSUS, states:

2. Subject to note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:

(a) Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 (other than heading 8485, 8548 or 9033) are in all cases to be classified in their respective headings.

In accordance with chapter 90, note 2(a), HTSUS, because the goggles are goods included under heading 9004, HTSUS, even if they are described as parts under heading 9020, HTSUS, which they are not, they are precluded from classification under heading 9020, HTSUS.

HOLDING:

The goggles are classifiable under subheading 9004.90.00, HTSUS, as goggles.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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