OT:RR:CTF:CPMMA H311239 AJK
Mr. Cameron Murphy
IC Systems Ltd.
P.O. Box 3853
Vancouver, B.C.
Canada V6B 3Z3
RE: Modification of HQ 088173; Classification of Paper Face Masks; Modification by Operation of Law
Dear Mr. Murphy:
This letter is in reference to Headquarters Ruling Letter (HQ) 088173, issued to you on March 26, 1991, concerning the tariff classification of a disposable protection kit, which contained a Tyvek protection suit, one pair of latex gloves, two Tecnol paper face masks and a large plastic bag for solid waste, under the Harmonized Tariff Schedule of the United States (HTSUS). In HQ 088173, U.S. Customs and Border Protection (CBP) held that because all components of the disposable kit were equally important, the merchandise was classified, under GRI 3(c), based upon the component whose heading occurred last in numerical order, which was the Tyvek protection suit. Accordingly, CBP classified the entire disposable protection kit in the provision for the Tyvek protection suit, which was subheading 6210.10.4010, HTSUSA (Annotated) (1991), which provided for “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Of fabrics of heading 5602 or 5603: Other: Nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas”. In the GRI 3(c) analysis, CBP classified the Tecnol paper face masks in subheading 4818.50.00, HTSUS, as clothing accessories of paper. We have reviewed the aforementioned ruling and find that the classification determination regarding the paper face masks was incorrect.
In addition to modifying the classification of the paper face masks, the classification of the Tyvek protection suit in HQ 088173 is modified by operation of law. This modification is the result of the change to subheading 6210.10.40, HTSUS, subsequent to the publication of HQ 088173. In the 1995 Basic Edition of the HTSUS, subheading 6210.10.4010, HTSUSA (1994), was removed and replaced by subheading 6210.10.5000, HTSUSA (1995), which provided for “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: Of fabrics of heading 5602 or 5603: Other: Nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas”. In the current version of the HTSUSA, this provision is now found under subheading 6210.10.50, HTSUS. Accordingly, the classification of the Tyvek protection suit is modified by operation of law and is now classified in subheading 6210.10.50, HTSUS.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice of the proposed action was published in the Customs Bulletin, Vol. 56, No. 41, on October 19, 2022. No comment was received in response to this notice.
FACTS:
The paper face masks are described in HQ 088173 as follows:
[T]he Tecnol High Filtration Iso Mask is made of a lightweight paper pulp. It is specially folded to fan out over and cover the mouth, a construction which is also known as a “surgical mask pleat design.” Two stretch loops which fit over the ears are sewn into either side of the mask. The top edge of the mask has a wire insert which can be bent to conform securely over the nose when worn.
ISSUE:
Whether the paper face masks are classified in subheading 4818.50.00, HTSUS, as clothing accessories of paper, or in subheading 4818.90.00, HTSUS, as other sanitary or hospital paper articles.
LAW AND ANALYSIS
Classification of goods under HTSUS is governed by the General Rules of Interpretation (GRI), and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation (ARI). GRI 1 provides that classification 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 2 through 6 may then be applied in order.
* * * * * *
The HTSUS provisions at issue are as follows:
4818 Toilet paper and similar paper, cellulose wadding or webs of cellulose fibers, of a kind used for household or sanitary purposes, in rolls of a width not exceeding 36 cm, or cut to size or shape; handkerchiefs, cleansing tissues, towels, tablecloths, table napkins, bed sheets and similar household, sanitary or hospital articles, articles of apparel and clothing accessories, of paper pulp, paper, cellulose wadding or webs of cellulose fibers:
4818.50.00 Articles of apparel and clothing accessories
4818.90.00 Other
* * * * * *
The Harmonized Commodity Description and Coding System (HS) Explanatory Notes (ENs) constitute the official interpretation of the HS. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HS at the international level, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
EN 48.18 provides, in pertinent part, as follows:
This heading covers toilet paper and similar paper, cellulose wadding and webs of cellulose fibres, of a kind used for household or sanitary purposes:
(1) in strips or rolls of a width not exceeding 36 cm;
(2) in rectangular (including square) sheets of which no side exceeds 36 cm in the unfolded state;
(3) cut to shape other than rectangular (including square).
It also covers household, sanitary or hospital articles, as well as articles of apparel and clothing accessories, of paper pulp, paper, cellulose wadding or webs of cellulose fibres.
EN 63.07 provides, in pertinent part, as follows:
[This heading] includes, in particular:
…
(22) Textile face-masks of a kind worn by surgeons during operations.
(23) Face-masks for protection against dust, odours, etc., not equipped with a replaceable filter, but consisting of several layers of nonwovens, whether or not treated with activated carbon or having a central layer of synthetic fibres. …
* * * * * *
There is no dispute that paper face masks are classified in heading 4818, HTSUS. The issue herein is whether they are classified at the 6-digit level as clothing accessories of paper in subheading 4818.50.00, HTSUS, or as other sanitary or hospital paper articles in subheading 4818.90.00, HTSUS.
To determine whether the subject paper face masks constitute “clothing accessories of paper” within heading 4818, HTSUS, we must first analyze whether the merchandise is considered an accessory. The term “accessory,” however, is not defined in the HTSUS or ENs. In the absence of a definition of a term in the HTSUS or ENs, the term is construed in accordance with its common and commercial meaning. See Toyota Motor Sales, Inc. v. United States, 7 C.I.T. 178, 182 (1984), aff’d, 753 F.2d 1061 (Fed. Cir. 1985); Nippon Kogaku (USA), Inc. v. United States, 69 C.C.P.A. 89 (1982). Dictionaries and other lexicographic authorities may be utilized to determine a term’s common meaning. See Mast Indus., Inc. v. United States, 9 C.I.T. 549 (1985), aff’d, 786 F.2d 1144 (Fed. Cir. 1986). Merriam-Webster Dictionary defines “accessory” as “an object or device that is not essential in itself but adds to the beauty, convenience, or effectiveness of something else.” Accessory, Merriam-Webster, https://www.merriam-webster.com/dictionary/accessory (last visited July 27, 2021). Moreover, CBP has historically defined “clothing accessory” as a non-essential item that is related to clothing, of secondary importance to clothing, and intended solely or principally as an accessory for use with clothing. See, e.g., HQ 088540, dated June 3, 1991; HQ 950470, dated Jan. 7, 1992; HQ 963734, dated Mar. 28, 2001; HQ 963874, dated Sept. 18, 2001; HQ H312436, dated Feb. 10, 2021.
The subject paper face masks do not constitute clothing accessories because they are not a class or kind of goods that are principally used to accessorize clothing or that add to the beauty, convenience, or effectiveness of clothing; instead, they are independently used for sanitary purposes. The subject merchandise is generally used to cover the user’s nose and mouth to reduce the user’s outward particle emission and to protect the user against any harmful airborne particulates. Therefore, if imported separately, the paper face masks would be precluded from classification in subheading 4818.50.00, HTSUS, because they are not used for clothing purposes or to accessorize articles of clothing. In fact, whereas articles of apparel and clothing accessories are classified in headings of chapters 61 and 62 within section XI of the HTSUS, textile face masks are classified separately in heading 6307, HTSUS, as other made up articles, in accordance with EN 63.07. See, e.g., NY 810977, dated June 2, 1995; NY J86722, dated July 22, 2003; NY J86741, dated July 22, 2003; NY N262565, dated Apr. 1, 2015; HQ H313043, dated Oct. 22, 2020. Accordingly, the fact that textile face masks are specifically enumerated as examples of “other made up articles” in EN 63.07 further supports our holding that the subject paper face masks are properly classified in subheading 4818.90.00, HTSUS, as other sanitary paper articles.
HOLDING:
By application of GRI 1, if imported separately, paper face masks, are classified in heading 4818, HTSUS, specifically in subheading 4818.90.00, HTSUS, which provides for “Toilet paper and similar paper, cellulose wadding or webs of cellulose fibers, of a kind used for household or sanitary purposes, in rolls of a width not exceeding 36 cm, or cut to size or shape; handkerchiefs, cleansing tissues, towels, tablecloths, table napkins, bed sheets and similar household, sanitary or hospital articles, articles of apparel and clothing accessories, of paper pulp, paper, cellulose wadding or webs of cellulose fibers: Other.” The 2022 column one, general rate of duty is free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
EFFECT ON OTHER RULINGS:
HQ 088173, dated March 26, 1991, is hereby modified to reflect the correct classification of the paper face masks in the disposable protection kit. In addition, the classification of the Tyvek protection suit in HQ 088173 is modified by operation of law.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division