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HQ 966577




August 12, 2004

CLA-2 RR:CR:GC 966577 DSS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.9880

Port Director
U.S. Customs and Border Protection
610 S. Canal Street

Chicago, IL 60173

RE: Protest No. 3901-03-100559; Plastic motorcycle helmet face shields from South Korea

Dear Port Director:

This is our decision on Protest No. 3901-03-100559 filed by counsel on behalf of Harley Davidson Motor Company (protestant), against your decision regarding the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a plastic motorcycle helmet face shield. Consideration was also given to additional material that was received on March 19, 2004 and April 28, 2004.

FACTS:

The merchandise under protest consists of molded plastic face shields for motorcycle helmets. They are imported from South Korea. They are designed to be attached to a motorcycle helmet to protect the rider’s eyes and face from flying debris and dirt. They are considered to be replacement parts and are imported separately from the motorcycle helmets. They can be clear or tinted plastic.

The protestant entered the merchandise under, and advocates classification of the subject merchandise under, subheading 9001.90.90, HTSUS, essentially as an “other optical element,” made of plastic. You reclassified the subject merchandise at liquidation under subheading 3926.90.98, HTSUS, which provides for “Other articles of plastic . . . Other: Other.” You do not believe that the instant articles are optical elements.

ISSUE:

Whether the instant plastic motorcycle visor is an optical element of heading 9001.

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514 (c)(3)(A)) and the matter is protestable (see 1514 U.S.C. 1514 (a)(2) and (5)).

Classification under the HTSUSA 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 on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUSA and are thus useful in ascertaining the classification of merchandise under the System. The Bureau of Customs and Border Protection (CBP) believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUSA provisions (2002) under consideration are as follows:

Other articles of plastic and articles of other materials of headings 3901 to 3914: Other:
Other:
3926.90.9880 Other
9001 Optical fibers and optical fiber bundles; optical fiber cables other than those of heading 8544; sheets and plates of polarizing material; lenses (including contact lenses), prisms, mirrors and other optical elements, of any material, unmounted, other than such elements of glass not optically worked: Other:
Other:
9001.90.90 Other

In an accompanying memorandum to support its claimed classification, protestant cites Regulation 8 of the Vehicle Equipment Safety Commission (VESC) (1980) (hereinafter “VESC guidelines” or “guidelines”), which it claims provides minimum requirements for motorcyclists’ eye protection devices. It also cites Celestaire, Inc. v. United States, 928 F. Supp. 1174 (CIT 1996), aff’d, 120 F.3d 1232 (Fed. Cir. 1997) (hereinafter Celestaire), claiming that the instant face shields fall under the definition of “optical element” contained therein. The protestant argues that because the face shields are molded and curved to fit a motorcycle helmet and to allow light to pass through them, they possess optical properties. If these visors did not have optical properties, the protestant argues, the visors would distort the light. At our request the protestant submitted additional material on March 19, 2004, which described the plastic material and the basic manufacturing process involved in molding the face shields. On April 28, 2004, at our request, protestant submitted additional material on certain international guidelines published by the United Nations that face shields must meet to be sold in Europe, among other places.

The ENs include within heading 9001, HTSUSA, “(D) Optical elements of any material other than glass, whether or not optically worked, not permanently mounted (e.g., elements of...plastics).” Therefore, we interpret the scope of the heading to provide for plastic articles if they qualify as optical elements. In order to determine if an article is an optical element, we turn to the distinctions between optical elements of glass of heading 7014, HTSUSA, and similar optical elements of glass provided for in heading 9001, HTSUSA, because the distinctions are instructive as to what qualifies as an optical element. In HQ 965192, dated September 9, 2002, we applied this analysis to plastic automotive lenses, and found that plastic articles may be considered optical elements of chapter 90 if manufactured in such a way as to impart optical properties, or if optically worked to impart such properties. See also HQ 959139, dated August 16, 1996. Thus, we must determine whether the instant face shields impart optical properties such that they would be classifiable as optical elements of heading 9001, HTSUSA, as they could not be classifiable in heading 7014, HTSUSA, because they are not glass. In HQ 965192, we also found that the plastic automotive lenses must be manufactured to perform certain relatively specific functions, such as filtering ultraviolet light, or refracting light to specific focal points or focal lengths.

In HQ 965192, we further stated:

In common meaning, the term “lens (optics)” is defined as, "A curved piece of ground and polished or molded material, usually glass, used for the refraction of light.” McGraw-Hill Encyclopedia of Science & Technology, Vol. 9 (1987), p. 663. Light refraction is an optical property for purposes of classification in heading 9001, HTSUS, because any transparent article refracts light passing through it to some extent. The lens must have a purpose beyond mere protection or incidental refraction. Thus, classification of a lens of this type is determined on a case by case basis. In HQ 959139, supra, we classified an automobile headlight lens in subheading 9001.90.40, HTSUS, [because] there were patterns molded into the lens and the importer submitted blueprints demonstrating how the light was refracted by the patterns. See also NY 876023, dated July 28, 1992 (classifying a plastic tail lamp lens with pattern in subheading 9001.90.40, HTSUS) and NY 818099, dated February 2, 1996 (classifying a tail lamp lens and a park lamp lens in subheading 9001.90.40, HTSUS) . . . [emphasis added].

Thus, similar to the lenses and other optical elements described above, the instant face shields must have a purpose beyond mere protection or incidental refraction to have an optical effect for tariff purposes.

Other CBP rulings also show that optical elements must be manufactured to perform certain relatively specific functions. See, e.g., HQ 966207, dated August 26, 2003 (stating prisms and lenses are examples of optical elements); HQ 966133, dated March 11, 2003 (stating glass filters are optical elements); HQ 960896, dated November 25, 1998 (classifying color filters under heading 7014, HTSUS). In HQ 960896, we cited Celestaire, supra, at 1177, which noted that the term “optical elements” included those which act upon, deal with or route rays of light. We also noted that the ENs indicated that optical elements produce some sort of optical effect, (e.g., refraction, reflection, polarizing, or filtering light).

The information provided does not show that the instant motorcycle helmet face shields produce an optical effect, however. The submitted guidelines show that the plastic face shields are designed and used to attach to a motorcycle helmet to offer protection from wind and road debris. Generally, with regard to the VESC (which no longer exists) and other international safety guidelines regarding motorcycle eye protection devices, we note that it is a long established principle of customs practice that the characterization of imported merchandise by governmental agencies for other than tariff purposes does not determine tariff classification. See United States v. Mercantil Distribuidora et al., 45 C.C.P.A. 20, C.A.D. 667 (1957); Marine Products Co. v. United States, 42 Cust. Ct. 154 (C.D. 2080) (1959). More specifically, the guidelines provided by protestant merely give some guidance on certain properties that safety goggles or face shields should have to allow light to pass through; they do not indicate that the devices are required to have any specific optical effect, as defined for tariff purposes. It also provides guidelines for the strength of eye protection (i.e., to protect the rider from rocks and other debris), but these are not relevant for defining an optical effect for tariff purposes.

Additionally, the material submitted on the plastic itself describes the general molding process and certain strength characteristics of the plastic but not information on optical effects. While the information provided shows that the material is relatively free of distortion and resists impact, this does not show the visors have optical properties. Moreover, the information shows that the visors, while curved to fit motorcycle helmets, are uniform in thickness, while optical elements are usually shaped in order to act on the light (e.g., forming a focal point), such as lenses. The information provided does not show that the visors have any function beyond protection or incidental reflection. Additionally, the CBP laboratory carefully considered the additional submissions, and concluded there is not sufficient information to indicate whether the instant articles possess specific optical effects (CBP laboratory memo HQ 2004040148, dated August 9, 2004).

Therefore based on the information presented, we conclude that classification of the plastic face shield under heading 9001, HTSUSA, is precluded by the terms of that heading 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 classified under heading 3926, HTSUSA, which provides for other articles of plastics. This comports with several other CBP rulings that classified similar merchandise under heading 3926, HTSUSA, including HQ 965090, dated March 21, 2002, which classified the same merchandise from the same importer under heading 3926, HTSUSA (classification in Chapter 90 was not raised or considered in that ruling). See also New York Ruling Letter (NY) 877354, dated August 26, 1992; NY G89437, dated April 11, 2001; and NY J85263, dated June 18, 2003.

HOLDING:

At GRI 1, the instant plastic motorcycle helmet face shield is classified under subheading 3926.90.9880, HTSUSA, which provides for “Other articles of plastics . . . : Other: Other: Other.” The 2002 general rate of duty is 5.3 percent ad valorem. The protestant should be aware that duty rates are provided for convenience only and are 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.

You should DENY the protest in full. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, 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 make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon

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