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HQ 968203




August 1, 2006

CLA-2 RR:CTF:TCM 968203 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.99.2580

Area Port Director
U.S. Customs and Border Protection
198 West Service Road
Champlain, NY 12919

RE: Internal Advice 06-007; Classification of a hockey helmet facemask with wire cage construction

Dear Area Port Director:

This is in reference to your memorandum dated March 28, 2006, in which you forwarded a request for internal advice from counsel on behalf of Maska U.S., Inc. (“Maska”), dated February 13, 2006, pursuant to section 177.11(b)(2) of the Customs and Border Protection (“CBP”) Regulations. At issue is the correct classification of a facemask with wire cage construction designed to be attached to an ice hockey helmet.

FACTS:

The article at issue is a metal protective full facemask or cage designed to be attached to an ice hockey helmet. While not stated by counsel, we believe that the wire cage is stainless steel. The facemask features a small strip at its top, designed to allow it to be fastened to a hockey helmet with two screws. It also features a chin cup

We believe that the chin cup is made of foam or foam-like material. with a strap that can be fastened to helmet sides after the facemask is attached to a hockey helmet to keep it securely in place. “RbK” is printed on the small strip at the top of the facemask. Additionally, the chin cup area features trademarks of Reebok International.

The facemask is imported separately, without a helmet. It is our understanding that Maska classified the facemask at issue in heading 7326, HTSUSA, as an other article of steel on certain entries made in 2005 through the Port of Champlain and other ports. At this time, however, Maska asserts that the facemask is classified in heading 9506, HTSUSA, as an article or equipment for hockey.

ISSUE:

What is the classification of the hockey helmet facemask at issue?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." In the event that 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, in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

It is undisputed that the facemask at issue is designed to be attached to an ice hockey helmet. We believe that the facemask at issue has a generic construction, allowing it to be used with Reebok branded hockey helmets, as well as hockey helmets distributed under other brands. Hockey helmets, with or without facemasks or shields attached, are classified in Heading 6506, HTSUSA, which provides for: “Other headgear, whether or not lined or trimmed.” The ENs to Heading 6506, HTSUSA, specifically state that the heading provides for “safety headgear (e.g., for sporting activities .).” In this case, however, the facemask is imported separately and it alone does not constitute “headgear.”

While Heading 6507, HTSUSA, provides for a limited number of certain fittings for headgear, protective facemasks or shields for sports are not included amongst those fittings. There is also no other heading in Chapter 65, HTSUSA, providing for “parts” or “accessories” of headgear. Consequently, the facemask is not classified in Chapter 65, HTSUSA.

Note 1(g) to Chapter 95, HTSUSA, states, in pertinent part, that Chapter 95 does not cover “sports headgear of chapter 65.” In this case, however, the facemask at issue is not excluded from classification in Chapter 95, HTSUSA, because the facemask does not constitute sports headgear.

Additionally, Note 3 to Chapter 95, HTSUSA, states in relevant part that “ parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles.” While hockey helmets are not classified in Chapter 95, we do not find this note to be applicable in this instance because we do not view the hockey helmet facemask at issue to be a “part” or an “accessory” of a hockey helmet. CBP generally will consider an article to be a “part” if it is combined with other articles to be used, or it is an integral, constituent or component, without which the article to which it is joined could not function. CBP generally will consider an article to be an “accessory” if it facilitates use or handling, or it widens the range of uses of the main article, or it improves the operation of the main article. See generally Headquarters Ruling Letter (“HQ”) 966472, dated November 25, 2003, HQ 962634, dated October 25, 2001, and HQ 082976, dated March 20, 1990.

The joining of the facemask with the helmet using two screws and a strap does not transform the facemask into a “part” or an “accessory” of a hockey helmet. Attaching the facemask to the helmet is the only practical way of keeping the facemask securely positioned over the face. While we recognize that the hockey helmet facemask at issue must be attached to a hockey helmet to be worn, a hockey helmet itself is a complete and functional article. While most players do wear a facemask, cage or shield of some sort, some players may elect not to wear one.

USA Hockey rules require that all Junior players wear full facial protection. National College Athletic Association (“NCAA”) regulations also require all USA college players to wear facial protection. See Michael J. Stuart MD (Chief Medical Officer, USA Hockey), Prevention of Ice Hockey Injuries, available at: http://www.usahockey.com. However, the National Hockey League (“NHL”) does not require that facial protection be worn. See NHL Rulebook, Rule 22, available at: http://www.nhl.com/rules/rule22.html. Yet, the helmet remains functional whether it is joined with a facemask or shield, or not. Therefore, the facemask is not a “part” of a helmet. The facemask also does not facilitate use or handling of the helmet, nor does it widen the range of uses of the helmet. Rather, the facemask provides protection to a part of the body that the helmet does not. The uses of the articles are separate. While the helmet protects the head, the facemask protects the face. Therefore, the facemask is not an “accessory” of a helmet.

Heading 9506, HTSUSA, provides for: “Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in [Chapter 95]; swimming pools and wading pools; parts and accessories thereof.”

The EN to heading 9506 state that the heading covers three categories of merchandise: (A) Articles and equipment for general physical exercise, gymnastics or athletics; (B) Requisites for other sports and outdoor games; and (C) Swimming and paddling pools. The EN to the heading specifically state that category (B) includes: “Protective equipment for sports or games, e.g., fencing masks and breast plates, elbow and knee pads, cricket pads, shin-guards.” See EN 95.06(B)(13). The exemplars of protective sports equipment listed incorporate hard or thick guards or pads, providing concentrated protection for a specific part of the body against injury by absorbing the impact of blows, collisions or flying objects.

In this instance, while not a named exemplar in the EN, we find that the facemask at issue provides protection akin to the exemplars set forth in EN 95.06(B)(13), most specifically to a fencing mask. The facemask at issue incorporates a hard metal cage construction with chin cup that protects a hockey player’s face by absorbing the impact of pucks, sticks, hockey rink boards and glass, etc.

In light of the above, we find that the facemask at issue is classified in heading 9506, HTSUSA, pursuant to GRI 1. See also New York Ruling Letter (“NY”) R00777, dated September 13, 2004, in which we classified replacement facemasks and pads for baseball catchers in heading 9506, HTSUSA.

As the facemask at issue is designed to be attached to an ice hockey helmet, the facemask is specifically provided for by subheading 9506.99.2580, HTSUSA, which provides for: “Articles and equipment for general physical exercise, gymnastics, athletics, other sports : Other: Other: Ice-hockey articles and equipment, except balls and skates, and parts and accessories thereof, Other, including parts and accessories.”

Maska’s classification of the facemask at issue in heading 7326, HTSUSA, as an other article of steel was incorrect. The EN to heading 7326 states, in pertinent part, that “[heading 7326] covers all iron or steel articles obtained by forging or punching, by cutting or stamping or by other processes such as folding, assembling, welding, turning, milling or perforating other than articles included in the preceding headings of this Chapter or more specifically covered elsewhere in the Nomenclature.” While the facemask may be manufactured through one of the processes listed in the EN, it is more specifically provided for by heading 9506 and is therefore classified in that heading.

HOLDING:

The hockey helmet facemask at issue is classified in subheading 9506.99.2580, HTSUSA, which provides for: “Articles and equipment for general physical exercise, gymnastics, athletics, other sports : Other: Other: Ice-hockey articles and equipment, except balls and skates, and parts and accessories thereof, Other, including parts and accessories.” The general (column one) rate of duty under the 2006 HTSUSA is “Free.” Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.

You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date, 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 means of public distribution.

Sincerely,

Myles B. Harmon, Director

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