Application for Further Review of Protest No. 5501-15-100120; Ski masks with attached false beards

HQ H275960 October 12, 2016 CLA-2 OT:RR:CTF:TCM H275960 PJG CATEGORY: Classification TARIFF NO.: 6117.80.9540 Port Director, Dallas/Fort Worth International Airport 7501 Esters Blvd., Suite 160 Irving, Texas 75063 ATTN: Juana Kundak, Supervisory Import Specialist RE: Application for Further Review of Protest No. 5501-15-100120; Ski masks with attached false beards Dear Port Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 5501-15-100120 dated August 25, 2015 filed by Lawrence W. Hanson, P.C. on behalf of Beardski Operating, LLC (“Beardski” or “Protestant”) concerning the classification of ski masks with attached false beards under the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: This AFR concerns the classification of twelve models of ski masks with attached false beards imported from the People’s Republic of China. The model numbers and style names for the ski masks subject to this AFR are as follows: BB-50001 (Black Beard – Pirate); BB-50004 (Brown Beard – Prospector); GB-50005 (Grey Beard – Biker); JB-50001 (Black Rasta Beard); JR-50005 (Brown Rasta Beard); SB-10001 (White Beard – Santa); SM-50008 (Merlin); YB-10001 (Blond Beard – Viking); BM-52002 (Big Mustache and Goatee Grey); SM-52009 (Big Country Beardski); SM-50011 (Easy Rider Beardski); and SM-50010 (Black Pearl Beardski). The ski masks are constructed of 80% polyester fabric, 18% foam, and 2% Velcro and the beards are sewn onto the ski masks. The ski masks are sold on Beardski’s website www.beardski.com. The photographs on the website indicate that the ski masks cover the lower part of the face, including the mouth, cheeks, and chin, as well as the bridge of the nose, with a slit for the nostrils. They are secured by an adjustable strap around the back of the head and do not cover the top of the head. The website describes the ski masks as follows: Adjustable attachment flaps make it one size fits all Made with thermal fleece neck & vented neoprene mouth and chin Water resistant Lined with high quality silk backing for quality construction Washable and non-flammable An image of model number BB-50004 (Brown Beard – Prospector) as found on the Beardski website is provided here for reference: `
The decision protested is the tariff classification of ski masks entered on one entry on September 29, 2014 under subheading 9505.90.60, HTSUS, which provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other.” U.S. Customs and Border Protection (“CBP”) liquidated the entry under heading 6117, HTSUS, and specifically under subheading 6117.80.95, HTSUS, which provides for “Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories: Other accessories: Other: Other.” ISSUE: Whether a ski mask with an attached false beard is classified in heading 6117, HTSUS, which provides for “Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories” or in heading 9505, HTSUS, which provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof.” LAW AND ANALYSIS: Initially, we note that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of Protest No. 5501-15-100120 is properly accorded to Protestant pursuant to 19 CFR § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Classification under the HTSUS 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 GRIs may then be applied. The 2014 HTSUS provisions under consideration are as follows: 6117 Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories: 9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: GRI 3(b) provides as follows: When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: * * * (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable … * * * Note 1(t) to Section XI, HTSUS, which includes Chapter 61, HTSUS, states as follows: This section does not cover: (t) Articles of Chapter 95 (for example, toys, games, sports requisites and nets); Note 7 to Section XI, HTSUS, which discusses made up textile articles states, in relevant part, as follows:  For the purposes of this section, the expression “made up” means: Cut otherwise than into squares or rectangles; Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets); Cut to size and with at least one heat-sealed edge with a visibly tapered or compressed border and the other edges treated as described in any other subparagraph of this note, but excluding fabrics the cut edges of which have been prevented from unraveling by hot cutting or by other simple means; Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unraveling by whipping or by other simple means; Cut to size and having undergone a process of drawn thread work; Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded); or Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length. Note 1 to Chapter 61, HTSUS, states as follows: This chapter applies only to made up knitted or crocheted articles. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The EN to 95.05 states, in pertinent part: This heading covers: Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include : * * * (3) Articles of fancy dress, e.g., masks, false ears and noses, wigs, false beards and moustaches (not being articles of postiche – heading 67.04), and paper hats. However, the heading excludes fancy dress of textiles, of Chapter 61 or 62. The Protestant argues that the ski masks with attached false beards should be classified under subheading 9505.90.6000, HTSUSA, which provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other.” Protestant argues that the subject merchandise is a novelty item and cannot be excluded from Chapter 95, HTSUS, by Note 1(e) to Chapter 95, HTSUS, because it cannot be described as fancy dress of textiles of Chapter 61 or 62, HTSUS, or sports clothing. Specifically, the Protestant argues that even though the merchandise is “marketed as a mask worn by a skier,” it “can be used by any individual in any situation in which they may require additional warmth for their face but value the novelty of wearing a bearded mask rather than an ordinary mask.” The Protestant also argues that the merchandise is not fancy dress because that term “refers primarily to very sturdy costumes or formal wear” and the subject merchandise “are novelty items that may function as accessories to costumes, but that are certainly not generally recognized as a normal article of apparel.” In addition, the Protestant asserts that the merchandise “is primarily an entertainment article” described by heading 9505, HTSUS. Protestant also claims that the merchandise’s “chief purpose to a consumer, and as contemplated by [the] manufacturer, is for amusement and entertainment as a novelty item.” The Protestant cites to New York (“NY”) Ruling N026011, dated May 6, 2008, to support its argument that the merchandise should be classified under heading 9505, HTSUS. In NY N026011, CBP classified, in relevant part, a faux goatee/beard that was meant to be glued to the face. The Protestant argues that the beard/goatee, like the subject merchandise, was constructed of 100% knit polyester. The Protestant states that unlike the beard/goatee in NY N026011, the beard in the subject merchandise “is attached to a mask that can then be attached to the face without glue.” The Protestant argues that “[t]he fact that the mask has some utility does not eliminate the novelty and amusement quality of the beard. As such, Beardski’s merchandise should be classified as the beard/goatee in NY N026011 under 9505.90.6000.” The Beardski ski masks are each composed of a ski mask of heading 6117, HTSUS, and an attached false beard of heading 9505, HTSUS. As such, the Beardski ski masks are not specifically provided for in any one heading. GRI 2(b) requires that the “classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3(a) states, in pertinent part, that “when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods … those headings are to be regarded as equally specific.” As each heading refers to only a part of the Beardski ski mask, the headings are considered equally specific, therefore, the product cannot be classified according to GRI 3(a). GRI 3(b) provides for “composite goods consisting of different materials or made up of different components … which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.” Explanatory Note VIII to GRI 3(b), states, “[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.”   EN(IX) to GRI 3(b) states that “composite goods” means goods “in which the components are attached to each other to form a practically inseparable whole.” The ski mask and the attached false beard are practically inseparable as the beard is sewn onto the ski mask. As such, the ski masks with attached false beards are classified using GRI 3(b). GRI 3(b) states that mixtures, composite goods and retail sets shall be classified as if they consisted of the component which gives them their essential character. EN GRI 3(b) (VIII) lists as factors to help determine the essential character of such goods: “the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” The CIT has indicated that the factors listed in EN GRI 3(b) (VIII) are “instructive” but “not exhaustive” and has indicated that the goods must be “‘reviewed as a whole.’” The Home Depot, U.S.A., Inc. v. United States, 30 Ct. Int’l Trade 445, 459-460 (2006) (citing A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 384 (1971) (citation omitted)). With regard to the good which imparts the essential character, the court has stated that it is “‘that which is indispensable to the structure, core or condition of the article, i.e., what it is.’” Id. at 460 (citing A.N. Deringer, Inc., 66 Cust. Ct. at 383). We find that the ski mask provides warmth and protection from the elements. According to the website www.beardski.com, it is constructed with “thermal fleece neck” and “vented neoprene mouth and chin.” It is “water resistant” and “lined with high quality silk backing for quality construction.” Moreover, the ski mask is indispensable to the structure and nature of the subject merchandise as it is a fully functional ski mask with an adjustable strap that secures around the back of the head. Therefore, the essential character of the ski masks with attached false beards is the ski mask component. Accordingly, by application of GRIs 3(b) and 6, the ski masks with attached false beards are classifiable in heading 6117, HTSUS, and specifically under subheading 6117.80.95, HTSUS, which provides for “Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories: Other accessories: Other: Other.” Ski masks have been classified by CBP in heading 6117, HTSUS. For example, in New York (“NY”) Ruling K81711, dated February 6, 2004, CBP considered the tariff classification of a fleece lined neoprene facemask, wherein the knit fleece material was made of 100% polyester fabric and the outer shell was made of knit polyester jersey camouflage material. The mask had a hook and loop closure. The product was designed for cold weather face protection during hunting or other winter activities. CBP classified the merchandise in 6117.80.9540, HTSUS, which provides for “Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories: Other accessories: Other: Other: Of man-made fibers: Other.” Similarly, in NY L82699, dated March 15, 2005, CBP considered the tariff classification of a neoprene facemask covered with knit polyester fabric. The facemask extended completely over the nose, ears, cheekbones and temple area with a hook and loop type fastener at the back of the head. The facemask was offered in three sizes under several style numbers and in a variety of camouflage and solid colors.  CBP determined that the applicable subheading for the neoprene face mask, would be subheading 6117.80.9540, HTSUS. While the facemasks that were the subject of NY Ruling K81711 and NY Ruling L82699 did not have an attached beard, they served the same function as the subject merchandise, which was to protect the face in cold weather conditions. Finally, we note that NY N026011 is not instructive because the merchandise at issue in that ruling was a faux goatee/beard unlike the ski masks with false beards at issue herein. HOLDING: Under the authority of GRIs 1, 3(b) and 6, the Beardski ski masks style numbers BB-50001; BB-50004; GB-50005; JB-50001; JR-50005; SB-10001; SM-50008; YB-10001; BM-52002; SM-52009; SM-50011; and SM-50010 are classified in heading 6117, HTSUS, specifically, under subheading 6117.80.9540, HTSUSA, which provides for “Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories: Other accessories: Other: Other: Of man-made fibers: Other.” The 2014 column one, general rate of duty is 14.6% ad valorem. Duty rates are provided for convenience and are subject to change. You are instructed to DENY the protest. In accordance with sections IV and VI of the CBP Protest/Petition Processing Handbook, you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of International Trade, 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 http://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