CLA-2 RR:CTF:TCM 967820 ASM
Port Director
Customs and Border Protection
Port of Chicago
610 S. Canal Street
Room 306
Chicago, IL 60607
RE: Decision on Application for Further Review of Protest No. 3901-05-100564; Classification of welding helmets
Dear Port Director:
This ruling is in response to an Application for Further Review of Protest No. 3901-05-100564 filed by McDermott Will & Emery LLP, on behalf of Miller Electric Manufacturing Company, concerning the classification of welding helmets under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Customs and Border Protection (CBP) has reviewed marketing and promotional literature with pictures of the subject merchandise.
FACTS:
The subject merchandise consists of welding helmets constructed of a heat resistant multi-layered shell of injection molded polyamide nylon and coated crystal urethane and silver color coatings. The helmets feature an electronically controlled auto-darkening lens assembly and an internal ratchet headgear assembly with a fabric headband. The welding helmet covers the face, eyes, ears, forehead, neck and the top and sides of the head.
CBP classified the subject welding helmets in subheading 9013.80.9000, HTSUSA, as other optical appliances and instruments, if containing an auto-darkening lens, and in subheading 3926.90.9880, as other articles of plastics, if not containing an auto-darkening lens.
The Protestant disagrees with CBP’s classification of the subject merchandise and requests classification in subheading 6506.10.3075, HTSUSA, as other safety headgear of reinforced or laminated plastics. A Protest was timely filed on the entries now in question and the Application for Further Review was properly allowed.
ISSUE: What is the proper classification for the merchandise?
LAW AND ANALYSIS: Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. The Protestant argues that the welding helmets are classifiable under subheading 6506.10.3075, HTSUSA, because of the protective properties of the helmet. The Protestant further asserts that a welding helmet worn by a welder is analogous to a hard-hat worn by a construction worker, which is classified in heading 6506, HTSUSA.
Heading 6506, HTSUSA, provides for other headgear, including safety headgear under subheading 6506.10, HTSUSA. We note that the term "headgear" is not specifically defined within the HTSUSA. A tariff term that is not defined in the HTSUSA 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 term "head" is defined in the American Heritage College Dictionary, (Houghton Mifflin Company, 1993) as "the uppermost or foreward most part of the body of a vertebrate, containing the brain and the eyes, ears, nose, mouth and jaws."
In Headquarter’s Ruling Letter (HQ) 087539, dated September 20, 1990, we stated that an article need not cover the head or crown in order to be classified as headgear. In so doing, we departed from prior rulings under the Tariff Schedules of the United States (predecessor to the HTSUSA), which provided a more limited scope 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. Like sports headgear, motorcycle helmets and hard hats, the welding helmets are designed and marketed to protect the wearer’s head.
We disagree with the classification of this merchandise as an other optical appliance in subheading 9013.80.9000, HTSUSA. This office finds that recent precedent classified similar merchandise in heading 6506, HTSUSA. In a recent ruling, HQ 967593, dated August 5, 2005, CBP applied a GRI 2(a) analysis in classifying unassembled welding helmets with auto-darkening filter lenses as safety headgear under heading 6506, HTSUSA.
In view of the foregoing, we conclude that the subject welding helmets are classifiable under heading 6506, HTSUSA. HOLDING: The auto-darkening safety welding helmets are classified in subheading 6506.10.3075, HTSUSA, which provides for "Other headgear, whether or not lined or trimmed: Safety headgear: Of reinforced or laminated plastics, Other: Other." The general column one rate of duty at the time of entry was Free. The protest should be ALLOWED. 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, Director
Commercial and Trade Facilitation Division