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HQ 958120




October 18, 1995

CLA-2 CO:R:C:T 958120 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6506.10.3030

Port Director
U.S. Customs Service
511 NW Broadway
Portland, OR 97209

RE: Protest No. 2904-95-100005; motorcycle helmets; Chapter 39 and 70; ENs to Chapter 39 and Heading 7019

Dear Sir:

This is a decision on application for further review of protest no. 2904-95-100005, filed on January 10, 1995, by Fritz Companies, Inc., on behalf of their client, Ed Tucker Distributing Inc. DBA, against the former District Director's decision concerning the classification of motorcycle helmets under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The articles at issue are motorcycle helmets, model TK300X, which when imported were entered under subheading 6506.10.6030, HTSUS, which provides for "Other headgear, whether or not lined or trimmed: Safety headgear: Other: Motorcycle helmets." It is the importer's position that the helmets at issue are not made of reinforced or laminated plastic, but of fiberglass. The importer submits a letter from the seller, dated December 19, 1994, which states that all KBC brand helmets are manufactured by a blow-mold process by using 100% fiberglass and polyester resin. He also submitted an Impact test from the University of Southern California Head Protection Research Laboratory which indicates on page 12 that sample helmet #TK300XA is of a material composed of fiberglass and polyester resin.

Upon liquidation, the helmets were classified in subheading 6506.10.3030, HTSUS, which provides for "Other headgear, whether or not lined or trimmed: Safety headgear: of reinforced or laminated plastics: Motorcycle helmets."

A sample of the helmet at issue was submitted to the U.S. Customs laboratory on February 13, 1995. Customs laboratory report no. 8-95-20932-001, dated March 1, 1995, determined that the body of the helmet is composed of layers of woven fiberglass material impregnated and bound together with plastic.

ISSUE:

What is the HTSUS tariff classification of the subject motorcycle helmets?

LAW AND ANALYSIS:

The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the 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 GRI's may be applied, taken in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the Customs Cooperation Council's official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the notes should always be consulted. See T.D. 89-80.

In order to determine if the subject helmet is classifiable in subheading 6506.10.3030, HTSUS, or subheading 6506.10.6000, HTSUS, we must determine if it is made up of "reinforced or laminated plastics" or of an "other" material for example, fiberglass. To do so we must look at the respective headings- Chapter 39, HTSUS, which provides for plastics and articles thereof and Chapter 70, HTSUS, which provides for glass and glassware.

Plastics and articles thereof of Chapter 39 include certain combinations of plastics and materials other than textiles, provided they retain the essential character of articles of plastics. The ENs, at pages 554 and 555, shed some light on this statement stating the following:

Combinations of plastics and materials other than textiles

This Chapter also covers the following products, whether they have been obtained by a single operation or by a number of successive operations provided that they retain the essential character of articles of plastics:

(d) Products consisting of glass fibres or sheets of paper, impregnated with plastics and compressed together, provided, they have a hard, rigid character. (If having more the character of paper or of articles of glass fibres, they are classified in Chapter 48 or 70, as the case may be.)

This is paralled by the ENs to heading 7019, which provides for glass fibers (including glass wool) and articles thereof (for example, yarn, woven fabric), that state the following on page 944:

The heading excludes:

(a) Semi-finished products and articles obtained by compressing glass fibres, or superimposed layers of glass fibres, impregnated with plastics, if having a hard, rigid character and hence having lost the character of articles of glass fibres. (Chapter 39)

The Customs laboratory analyzed this helmet and determined that "the body of the helmet is composed of layers of woven fiberglass material impregnated and bound together with plastic." The article also has a hard, rigid character. Therefore, based on the above Notes, the helmet is considered to be an article of plastic rather than of glass. Furthermore, based on the manufacturing process, this article is considered to be "reinforced or laminated" plastic. Thus, as the helmet is headgear of reinforced or laminated plastic, it is properly classifiable in subheading 6506.20.3030, HTSUS,

We note that in support of its position, the importer submitted test results from the University of Southern California Head Protection Research Laboratory. These results state that the helmet is of fiberglass and polyester resin. While the results are informative they are not dispositive in classifying an article under the HTSUS. Customs must rely on the rules as set out by the HTSUS in classifying articles therein. Moreover, Customs must rely on its own laboratory analysis when determining the proper tariff classification of merchandise and need not consult an independent laboratory. Thus, in the instant case, the helmet is considered to be of reinforced or laminated plastic pursuant to the Customs laboratory findings and the rules set out in HTSUS.

HOLDING:

The motorcycle helmet is classifiable in subheading 6506.10.3030, HTSUS. The protest should be denied in full and a copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision 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 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 the ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals Division


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