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HQ 965090




March 21 2002

CLA-2 RR:CR:GC 965090 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.98

Mr. Steve Rubinson
Harley-Davidson Motor Company
3700 West Juneau Avenue
Milwaukee, WI 53201

RE: Reconsideration of NY G89437; Replacement plastic face shields for motorcycle helmets

Dear Mr. Rubinson:

This is in reference to your letter, dated May 1, 2001, to the National Commodity Specialist Division, New York, requesting reconsideration of New York Ruling Letter (“NY”) G89437, dated April 11, 2001, regarding the classification of replacement plastic face shields for motorcycle helmets, under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter, together with a catalog page illustrating the face shield, was forwarded to this office for reply. We regret the delay in responding.

FACTS:

The articles under consideration are plastic face shields for motorcycle helmets. They were described in NY G89437 as follows:

The face shield (Harley-Davidson (“H-D”) Part Number: 98014-01V) is composed of molded plastic and will be used as a replacement part for a motorcycle helmet.

After determining that the face shield is a part of headgear and that heading 6506, HTSUS, does not provide for parts, NY G89437 held that the articles were classified under subheading 3926.90.9880, HTSUS, which provides for other articles of plastics, other.

ISSUE:

Whether the subject merchandise is classifiable under heading 3926, HTSUS, which provides for other articles of plastics; heading 6506, HTSUS, which provides for headgear, or under heading 6507, HTSUS, which provides for headbands, linings, covers, hat foundations, hat frames, peaks (visors) and chinstraps, for headgear.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states, in part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to the remaining GRIs, applied sequentially. One cannot resort to classification according to GRI 4 unless the goods cannot be classified in accordance with GRIs 1 through 3.

The HTSUS provisions under consideration are as follows:

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: 3926.90 Other:
3926.90.98 Other.
6506 Other headgear, whether or not lined or trimmed: 6506.10 Safety headgear:
6506.10.30 Of reinforced or laminated plastics: 6506.10.30.30 Motorcycle helmets.
6507.00.00 Headbands, linings, covers, hat foundations, hat frames, peaks (visors) and chinstraps, for headgear.

Subheading 3926.90.98, HTSUS, is a so-called "basket" provision within Chapter 39, in which classification "is appropriate only when there is no tariff category that covers the merchandise more specifically." (Apex Universal, Inc., v. United States, CIT Slip Op. 98-69 (May 21, 1988).) Therefore, we are first addressing the other competing provisions within Chapter 65 that you allege merit consideration. Only if classification in those provisions is precluded will we address classification under heading 3926, HTSUS.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the 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. Customs believes the ENs should always be consulted. See T.D. 89-80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128). In your original ruling request, dated March 30, 2001, you suggested that the articles should be classified under subheading 6506.10.6075, HTSUS, which provides for other headgear. In your request for reconsideration, you suggest that pursuant to GRI 4, the plastic face shields should be classified under heading 6507, HTSUS, which provides for headbands linings, covers, hat foundations, hat frames, peaks (visors) and chinstraps, for headgear.

While Chapter 65 is captioned “[h]eadgear and parts thereof”, GRI 1 instructs, in pertinent part, that “titles of sections, chapters and subchapters are provided for ease of reference only.” Thus, the reference to parts of headgear (“and parts thereof”) in the caption has no bearing on the classification of the plastic face shields. Therefore we consider, in accordance with GRI 1, the relevant section, chapter and heading provisions, as well as those of the relevant ENs.

The relevant Section and Chapter Notes, HTSUS, do not provide substantive guidance. Section VII contains no notes, and the Notes to Chapter 65 likewise provide no substantive guidance. The General ENs to Chapter 65 at page 1107 provide, in pertinent part, as follows:

1. This Chapter does not cover:

(a) Worn headgear of heading No. 63.09;
(b) Asbestos headgear (heading No. 68.12); or (c) “Dolls ” hats, other toy hats or carnival articles of Chapter 95. With the exception of the articles listed below this Chapter covers hat-shapes, hat-forms, hat bodies and hoods, and hats and other headgear of all kinds, irrespective of the materials of which they are made and of their intended use (daily wear, theatre, disguise, protection, etc.). The hats and other headgear of this Chapter may incorporate trimmings of various kinds and of any material, including trimmings made of the materials of Chapter 71.

This Chapter does not include:

(a) Headgear for animals (heading 42.01). (b) Shawls, scarves, mantillas, veils and the like (heading 61.17 or 62.14). (c) Headgear showing signs of appreciable wear and presented in bulk, bales, sacks or similar bulk packings (heading 63.09). (d) Wigs and the like (heading 67.04).
(e) Asbestos headgear (heading 68.12).
(f) Doll ’s hats, other toy hats or carnival articles (Chapter 95). (g) Various articles used as hat trimmings (buckles, clasps, badges, feathers, artificial flowers, etc.) when not incorporated in headgear (appropriate headings).
The subject face shields cannot be construed to be even similar to any of the articles included in the General ENs.

Heading 6506, HTSUS, provides for other headgear, including motorcycle helmets under subheading 6506.10.30, HTSUS. We note that the term “headgear” is not specifically defined within the HTSUS. A tariff term that is not defined in the HTSUS or in the ENs is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). Reference to lexicographic authorities is proper when determining the meaning of a tariff term. Hasbro Industries, Inc. v. U.S., 703 F. Supp. 941 (CIT 1988), aff'd, 879 F.2d 838 (1989).

The term “headgear” is defined in Webster’s II New Riverside University Dictionary, (Houghton Mifflin Company, 1988), as “something, as a hat or helmet, that covers the head.” The term is identically defined in Webster’s II New College Dictionary, (Houghton Mifflin Company, 1999).

The plastic face shields are designed and used to attach to a motorcycle helmet. While the articles offer protection from wind and road debris, the are neither hats nor helmets.

Significantly for tariff classification purposes, heading 6506, HTSUS, does not provide for parts of headgear. The ENs to heading 6506, HTSUS, at page 1111, provide, in pertinent part, that:

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.

We conclude, based upon consideration of the provisions of heading 6506, HTSUS, and the ENs thereto, that the articles are not classifiable under heading 6506, HTSUS.

Heading 6507 provides for headbands, linings, covers, hat foundations, hat frames, peaks (visors) and chinstraps, for headgear. The ENs to heading 6507 at page 1112 provide that this heading “covers only the following fittings for headgear [emphasis in original]”: head-bands, linings and part linings, covers, hat foundations, hat frames, peaks, chinstraps. The EN, by its terms, is restricted to the named articles. Assuming arguendo that the plastic face shields could be construed to be “peaks”, the EN specifies that:
peaks (e.g., for uniform or other caps). Peaks designed for wear mainly as eyeshades are classified as headgear if they incorporate a headpiece (crown) of any kind, otherwise they are classified according to their constituent material [emphasis added].

We do not consider the plastic face shields to be “peaks.” Even if we were to consider them to be such, because of their condition as imported (i.e., because they do not “incorporate a crown”), the articles would be classified “according to their constituent material,” plastic. The articles are mentioned in neither the terms of the heading nor the relevant ENs. Therefore, the articles are not classifiable under heading 6507, HTSUS.

After careful consideration, we conclude that classification of the plastic face shield under headings 6506 and 6507, HTSUS, is precluded by the terms of those headings and relevant ENs.

An article is to be classified according to its condition as imported. See, XTC Products, Inc. v. United States, 771 F.Supp. 401, 405 (1991). See also, United States v. Citroen, 223 U.S. 407 (1911). In their condition as imported, the replacement plastic face shields are articles of molded plastic. In accordance with GRI 1, the articles are classifiable under heading 3926, HTSUS, which provides for other articles of plastics.

HOLDING:

The replacement plastic face shields (H-D Part Number: 98014-01V) are classified under subheading 3926.90.98, HTSUS, which provides for other articles of plastics, other.

EFFECT ON OTHER RULINGS:

NY G89437 is AFFIRMED.

Sincerely,

John Durant, Director

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