CLA-2 RR:CTF:TCM H145555 EGJ
Port Director
U.S. Customs and Border Protection
301 East Ocean Blvd.
Suite 1400
Long Beach, CA 90802
Attn: Renée Orsat, Import Specialist
Re: Application for Further Review of Protest No. 2704-10-101659: Snuggies®
Dear Port Director:
This is in response to the Application for Further Review (AFR) of Protest 2704-10-101659, dated August 12, 2010. Counsel filed this AFR on behalf of Allstar Marketing Group, LLC (Protestant), in response to your classification of Snuggies® under the Harmonized Tariff Schedule of the United States (HTSUS). In addition to the original AFR, Protestant has submitted two supplements to our office, dated February 25, 2011, and August 25, 2011. On March 8, 2012, members of my staff met with Protestant’s representatives and counsel. Protestant also submitted two sample Snuggies® to our office.
FACTS:
Item No. SN051106 is a small Snuggie® constructed from 100 percent polyester fleece knit fabric. It is rectangular in shape, measures 54” x 42”, and has sleeves. The small Snuggie® is packaged for retail sale in a cardboard box. The box describes the Snuggie® as a “blanket with sleeves.” The packaging also includes statements such as “for kids”, “keeps you warm and your hands free!” and “you can also use it outside or in the car!” A pair of slipper socks with non-skid soles is also enclosed in the box.
Item No. SN106106 is a large Snuggie® constructed from 100 percent polyester plush knit fabric. It is rectangular in shape, measures 71” x 54”, and features sleeves and two pockets. The packaging states that it is “the blanket that has sleeves!” The packaging also includes statements such as “one size fits all” and “includes convenient pockets.”
The Snuggies® do not have any closures. The pictures on both packages show people wearing the Snuggies® while seated or reclining.
The subject protest covers sixteen entries of Snuggies®. Between April 23, 2010, and June 11, 2010, CBP liquidated all of these entries as entered under heading 6114, HTSUS, which provides for garments. On August 12, 2010, Protestant submitted the subject Protest and Application for Further Review (AFR).
ISSUES:
Are the Snuggies® classified as garments of heading 6114, HTSUS, and therefore excluded from classification as a blanket of heading 6301, HTSUS, and as an other made up article of heading 6307, HTSUS, by Note 2(a) to Chapter 63?
LAW AND ANALYSIS:
The matter is protestable as a decision on classification. 19 U.S.C. §1514(a)(2). Protestant’s AFR satisfies application criteria because Protestant alleges that CBP’s classification of the Snuggies® is inconsistent with CBP rulings on substantially similar merchandise. 19 C.F.R. § 174.24(a). Protestant cites to several rulings which classify rectangular fabric with arm holes, leg holes, hoods, zippers and snaps as either blankets under heading 6301, HTSUS, or as other made up articles under heading 6307, HTSUS. See, e.g. NY H85985, dated December 20, 2011, NY M80480, dated February 26, 2006, NY N063742, dated May 14, 2010, and NY N052230, dated February 20, 2009. Thus, Protestant claims that the Snuggies® should be classified in either heading 6301, HTSUS, or in heading 6307, HTSUS.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context, which requires otherwise, by the Additional U.S. Rules of Interpretation. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The following HTSUS provisions will be referenced:
6114 Other garments, knitted or crocheted . . .
* * *
6211 Track suits, ski-suits and swimwear; other garments:
* * *
6301 Blankets and traveling rugs . . .
* * *
6307 Other made up articles, including dress patterns . . .
* * *
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
* * *
9506 Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof:
* * *
Additional U.S. Rule of Interpretation 1(a), HTSUS, provides, in relevant part, that:
In the absence of special language or context which otherwise requires:
… a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.
* * *
Note 1(t) to Section XI, which includes Chapters 50-63, provides that:
This section does not cover:
(t) Articles of chapter 95 (for example, toys, games, sports requisites and nets) …
* * *
Note 7 to Section XI, which includes Chapters 50-63, provides that:
For the purposes of this section, the expression "made up" means:
(a) Cut otherwise than into squares or rectangles;
(b) 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);
(c) 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;
(d) Cut to size and having undergone a process of drawn thread work;
(e) 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
(f) 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 63 states that:
Subchapter 1 applies only to made up articles, of any textile fabric.
* * *
Note 2(a) to Chapter 63 states that:
Subchapter 1 does not cover:
(a) Goods of chapters 56 to 62; …
* * *
Note 1(e) to Chapter 95 states that:
This chapter does not cover:
(e) Sports clothing or fancy dress, of textiles, of chapter 61 or 62;
* * *
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 61.14 provides as follows:
This heading covers knitted or crocheted garments which are not included more specifically in the preceding headings of this Chapter.
The heading includes, inter alia :
(1) Aprons, boiler suits (coveralls), smocks and other protective clothing of a kind worn by mechanics, factory workers, surgeons, etc.
(2) Clerical or ecclesiastical garments and vestments (e.g., monks’ habits, cassocks, copes, soutanes, surplices).
(3) Professional or scholastic gowns and robes.
(4) Specialized clothing for airmen, etc. (e.g., airmen’s electrically heated clothing).
(5) Special articles of apparel, whether or not incorporating incidentally protective components such as pads or padding in the elbow, knee or groin areas, used for certain sports or for dancing or gymnastics (e.g., fencing clothing, jockeys’ silks, ballet skirts, leotards). However, protective equipment for sports or games (e.g., fencing masks and breast plates, ice hockey pants, etc.) are excluded (heading 95.06).
* * *
EN 63.01 provides as follows:
Blankets and traveling rugs are usually made of wool, animal hair, cotton or man made fibers, frequently with a raised pile surface, and generally of thick heavy texture material for protection against the cold. The heading also covers rugs and blankets for cots or prams.
Traveling rugs usually have fringes (generally formed by projecting warp or weft threads), but the edges of blankets are normally preserved by blanket stitching or binding.
The heading includes fabrics in the piece which, by the simple process of cutting along defined lines indicated by the absence of weft threads, may be converted into separate articles having the character of finished blankets or traveling rugs.
Electrically heated blankets are also included in the heading.
The heading does not include :
(a) Specially shaped blankets for covering animals (heading 42.01).
(b) Bedspreads and counterpanes (heading 63.04).
(c) Quilted or stuffed bed coverings of heading 94.04.
* * *
Applying GRI 1, we must first look to the terms of the headings, and any relevant section or chapter notes. Note 2(a) to Chapter 63 states that Subchapter 1 (headings 6301-6307, HTSUS) does not cover goods of Chapters 56 to 62. Therefore, if the merchandise is classifiable under heading 6114, HTSUS, it cannot be classified in Chapter 63, as a blanket of heading 6301, HTSUS, or as an other made-up article of heading 6307, HTSUS.
Heading 6114, HTSUS, provides for knitted garments. In H.I.M./Fathom, Inc. v. United States, 21 C.I.T. 776, 781 (1997) (H.I.M./Fathom), the U.S. Court of International Trade (CIT) defined the tariff term “garment” as follows:
A garment is defined as "an article of outer clothing (as a coat or dress) usu. exclusive of accessories." Webster's Third New International Dictionary 936 (1993). Clothing is defined as "covering for the human body or garments in general: all the garments and accessories worn by a person at any one time." Id. at 428.
The Snuggies® are articles worn as an outer covering for the human body at a particular time, such as while seated or reclining. As such, the Snuggies® are prima facie classifiable as knitted garments. CBP has consistently classified rectangular fabric with sleeves as garments under heading 6114, HTSUS. See NY N128837, dated November 19, 2010, NY N096949, dated March 31, 2010, NY N074164, dated September 1, 2009, NY N061295, dated June 1, 2009, NY N056515, dated April 6, 2009, and NY N055235, dated March 24, 2009. Applying GRI 1, Note 2(a) to Chapter 63 precludes CBP from classifying the merchandise as blankets of heading 6301, HTSUS, or as made up articles of heading 6307, HTSUS.
Protestant argues that the Snuggies® cannot be classified as garments because the Snuggies® are so long that they impede the wearer’s mobility. The Snuggie® comes in two different lengths. The large Snuggie® is approximately six feet long, while the small Snuggie® is approximately four and a half feet long. We agree that most wearers would have difficulty walking in the large Snuggie®. Additionally, Protestant observes that the Snuggies® lacks closures such that the back will hang open if the wearer stands up.
Considering these characteristics, we note that the CIT’s definition of a garment does not provide for length or closures. Rather, a garment is a covering for the human body worn at any one time. The wearer will likely don the large Snuggie® while seated or reclining because of its length. However, this does not change the fact that the Snuggies® are still outer coverings for the human body which are worn at a particular time. Additionally, nothing prevents the small Snuggie® from being worn at times when mobility is needed. CBP has also classified certain women’s wraps which lack closures as garments of heading 6114, HTSUS. See, e.g. NY N112076, dated July 13, 2010, and NY D88074, dated March 16, 1999. As such, the length and lack of closures do not preclude classification of the Snuggies® as garments of heading 6114, HTSUS.
Protestant offers several arguments based upon the use of the Snuggies®. First, Protestant states that the test to determine whether an article is to be considered wearing apparel is dependent on its use. Admiral Craft Equipment Corp. v. United States, 82 Cust. Ct. 162, 166 (1979) (Admiral Craft). In Admiral Craft, the U.S. Customs Court (predecessor to the CIT) analyzed item 772.30 of the Tariff Schedules of the United States (TSUS) (predecessor to the HTSUS), which provided for “wearing apparel (including rainwear) not specially provided for, of rubber or of plastics.” Id. There, the Court stated that “a provision for wearing apparel is a classification by use”. Id.; see also Arnold v. United States, 147 U.S. 494 (1893), Daw Industries, Inc. v. United States, 714 F.2d 1140 (Fed. Cir. 1983), Dynamics Classics, Ltd. v. United States, 10 C.I.T. 666 (1986) (Dynamics Classics).
In The Pomeroy Collection, Ltd. v. United States, 559 F.Supp. 2d 1374, note 22 (Ct. Int’l Trade 2008), the CIT explained the difference between use provisions and eo nomine provisions as follows:
A ‘use’ provision is ‘a provision describing articles by the manner in which they are used as opposed to by name,’ while an eo nomine provision is one ‘in which an item is identified by name.’ Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1308 (Fed. Cir. 2003) (Len-Ron Mfg.). And there are two types of ‘use’ provisions – ‘actual use’ and ‘principal (formerly known as ‘chief’) use.’ An ‘actual use’ provision is satisfied only if ‘such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the, goods are entered.’ See Additional U.S Rule of Interpretation (ARI) 1(b) (quoted in Clarendon Mktg., Inc. v. United States, 144 F.3d 1464, 1467 (Fed. Cir. 1998)). In contrast, a ‘principal use’ provision functions essentially ‘as a controlling legal label, in the sense, that even if a particular import is proven to be actually used inconsistently with its principal use, the import is nevertheless classified according to its principal use.’ Clarendon Mktg., 144 F.3d at 1467.
Protestant repeatedly cites to cases which have interpreted tariff items for “wearing apparel” as use provisions under the TSUS. See, e.g. Antonio Pompeo v. United States, 40 Cust. Ct. 362 (1958) (court held that motorcycle helmets do not have the same use as wearing apparel) (Antonio Pompeo), and Dynamics Classics, 10 C.I.T. 666 (court held that exercise suits of plastic material chiefly used for weight and girth reduction do not have the same use as wearing apparel). However, CBP must classify the Snuggies® under the terms of the HTSUS, not the TSUS. According to GRI 1, “the table of contents, alphabetical index, and titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes.” The term “wearing apparel” does not appear in the headings, section notes or chapter notes for heading 6114, HTSUS. As such, the TSUS use provision for “wearing apparel” is not helpful in the classification determination of the Snuggies® as “garments” of heading 6114, HTSUS.
Heading 6114, HTSUS, is not a use provision. In H.I.M. Fathom, the CIT stated that “the garment provisions involved, Chapters 61 and 62, are not use provisions, … rather, … heading 6114 simply refers to knitted or crocheted articles.” 21 C.I.T. at 783. Thus, heading 6114, HTSUS, is an eo nomine provision because it identifies garments by name and not by use.
Although heading 6114, HTSUS, is an eo nomine provision, we must still address Protestant’s arguments with regard to the Snuggies®’ use. Ordinarily, use is not a criterion considered when determining whether merchandise is embraced within an eo nomine provision. J.E. Mamiye & Sons, Inc. v. United States, 509 F. Supp. 1268, 1274 (Cust. Ct. 1980); Pistorino & Co. v. United States, 599 F.2d 444 (C.C.P.A. 1979); F.W. Myers & Co. v. United States, 24 Cust. Ct. 178, 184-185, C.D. 1228 (1950). However, in United States v. Quon Quon Co., 46 C.C.P.A. 70, 73 (1959) (Quon Quon), the Court of Customs and Patent Appeals stated:
Of all things most likely to help in the determination of the identity of a manufactured article, beyond the appearance factors of size, shape, construction and the like, use is of paramount importance. To hold otherwise would logically require the trial court to rule out evidence of what things actually are every time the collector thinks an article, as he sees it, is specifically named in the tariff act.
The Quon Quon case has come to stand for the proposition that use may be considered in determining the identity of an eo nomine provision. Sears Roebuck & Co. v. United States, 790 F. Supp. 299, 302 (Ct. Int’l. Trade 1992); J.E. Mamiye & Sons, Inc., 509 F. Supp. at 1274; Sanji Kobata et al. v. United States, 326 F. Supp. 1397, 1402-1403 (Cust. Ct. 1971); See also HQ W968275, dated January 26, 2010; HQ 964444, dated December 18, 2001; HQ 963032, dated July 24, 2000; HQ 957997, dated August 7, 1995. However, use is simply one of the factors to be considered in determining whether merchandise falls within the scope of an eo nomine tariff provision. Myers v. United States, 969 F. Supp. 66, 72 (Ct. Int’l. Trade 1997) (Myers); See also HQ 964444; HQ 957997. In Myers, the CIT stated that “the Court does not read the [Quon Quon] opinion to support the proposition that certain eo nomine provisions are in fact governed by use.” Id. at 72.
We have already determined that the Snuggies® fall under the CIT’s definition of a garment in H.I.M./Fathom. 21 C.I.T. at 781. Under Quon Quon, we must also consider the Snuggies’® use. 46 C.C.P.A. at 73. In Rubie’s Costume Co. v. United States, 337 F.3d 1350 (Fed. Cir. 2003) (Rubie’s Costume Co.), a costume manufacturer claimed that certain costumes were classifiable as garments under heading 6114, HTSUS. The U.S. Court of Appeals for the Federal Circuit (CAFC) stated that garments of Chapters 61 and 62 have the same purpose as “wearing apparel” under the TSUS. Id. at 1357. According to the CAFC, the use for wearing apparel is “ ‘decency or comfort …adornment is also an element of many articles of wearing apparel.’” Id. citing Antonio Pompeo, 40 Cust. Ct. at 364.
The Snuggies® are primarily used for comfort, which is one of the enumerated uses for garments in Rubie’s Costume Co. 337 F.3d at 1357. Indeed, the packaging states that the Snuggie® “keeps you warm and your hands free!” and that “you can also use it outside or in the car!” As such, the Snuggies’® use does not preclude them from classification as garments.
In addition to citing to TSUS cases for support, Protestant describes Rubie’s Costume Co., 337 F.3d 1350, and Bauer Nike Hockey USA v. United States, 393 F.3d 1246 (Fed. Cir. 2004) (Bauer Nike), as part of a line of cases which make it clear that not all things “worn” by humans constitute wearing apparel. However, both of these cases hinged upon the application of exclusions for goods of Chapter 95. Chapter 95 covers toys, games and sports equipment. Neither Protestant nor CBP contend that the Snuggies® are prima facie classifiable in Chapter 95.
In Rubie’s Costume Co., CBP classified certain Halloween costumes in heading 9505, HTSUS, which provides for “Festive, carnival or other entertainment articles.” 337 F.3d at 1353-1355. To classify the costumes, the CAFC applied Note 1(e) to Chapter 95, which excludes “sports clothing or fancy dress, of textiles, of chapter 61 or 62,” from classification in Chapter 95. Id. at 1352. The CAFC noted that in Traveler Trading Co. v. United States, 20 C.I.T. 628, 629 (1996), CBP agreed to stipulate that under Note 1(e) to Chapter 95, “all costumes [imported by Traveler] of flimsy nature and construction lacking durability and generally not recognized as not normal articles of apparel shall be classified as festive articles under section 9505…” In Rubie’s Costume Co., the CAFC determined that this test for textile costumes classifiable in heading 9505, HTSUS, was persuasive. 337 F.3d at 1358-1359.
Yet, Protestant cites to Rubie’s Costume Co. and states that CBP cannot classify the Snuggies® under 6114, HTSUS, because they are not generally recognized as normal articles of apparel. 337 F.3d at 1360. However, CBP and the courts derived this test from Note 1(e) to Chapter 95. Note 1(e) excludes certain fancy dress of textiles from Chapter 95. Therefore, CBP only applies this test to garments which are prima facie classifiable in Chapter 95. See Classification of Textile Costumes under the HTSUS: An Informed Compliance Publication (CBP June 2008) available at http://www.cbp.gov/xp/cgov/trade/legal/informed_compliance_pubs/. Indeed, Circuit Judge Bryson’s dissent in Rubie’s Costume Co. states that subheading 6210.10.50, HTSUS, provides for “disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas,” while subheading 6210.10.70, HTSUS, provides for “disposable briefs and panties designed for one-time use.” 337 F.3d at 1361-1362. Although these items are specifically named in Chapter 62, they fail the test derived from Note 1(e) to Chapter 95 for “fancy dress, of chapters 61 and 62” set forth in Traveler Trading Co. 20 C.I.T. at 629. As such, the test for fancy dress cannot exclude all garments from classification in Chapters 61 or 62.
Even if this test applied to the Snuggies®, the test would not exclude the Snuggies® from classification in Chapter 61. The test states that textile costumes of a flimsy nature and construction, lacking durability and generally not recognized as normal articles of apparel are not fancy dress of Chapter 61 or 62. In order to be excluded, the Snuggies® must fail every element of the test. Since the Snuggies® are well-made and durable, they do not fail the test. In addition to being misplaced, Protestant’s argument that Snuggies® are not generally recognized as apparel is unpersuasive.
Protestant also cites to Bauer Nike for the proposition that not every article which is worn is classifiable as a garment. 393 F.3d 1246. In Bauer Nike, the CAFC examined Note 1(t) to Section XI, which excludes “articles of Chapter 95” from classification in Section XI. Id. at 1253. The CAFC determined that ice hockey pants were classifiable as sports equipment under heading 9506, HTSUS. Id. As such, the ice hockey pants were excluded from classification as garments of Section XI. Id. However, Note 1(t) does not apply to the Snuggies® because they are not classifiable in Chapter 95. As such, Protestant’s reliance on Bauer Nike for a general proposition on the different uses for garments is misplaced. Id.
Finally, Protestant argues that the Snuggies® are not similar to the examples of knitted garments listed in EN 61.14. However, EN 61.1.4 states that “the heading includes, inter alia…”, which explains that the list of examples is not exhaustive. Moreover, we disagree that the Snuggies® are unlike the examples. The examples include “(2) clerical or ecclesiastical garments and vestments …; (3) professional or scholastic gowns and robes.” Although the Snuggies® are long in the front and lack closures, they share some of the same characteristics as clerical garments and scholastic robes. Like these garments, the Snuggies® have wide-armed sleeves and flow loosely around the body. Finally, the ENs are exemplars; they are neither all-inclusive nor exhaustive. As such, the Snuggies® may be classified in heading 6114, HTSUS, without being listed as an example in EN 61.14.
The bulk of Protestant’s arguments are that the Snuggies® are blankets. Heading 6301, HTSUS, provides for blankets and traveling rugs. Protestant cites to dictionary definitions of blankets, which define a blanket as “a large piece of woven material used as a covering for warmth, esp. on a bed/a thick layer that covers or encloses,” citing The American Heritage Dictionary (2nd College Edition 1985). Protestant also states that a blanket is “a warm woolen (or nylon etc.) covering used esp. on bed/any extended covering,” citing New Webster’s Dictionary and Thesaurus of the English Language (1993). Protestant also cites to EN 63.01, which states that “blankets and traveling rugs are usually made of wool, animal hair, cotton or man made fibers, frequently with a raised pile surface, and generally of thick heavy texture material for protection against the cold. The heading also covers rugs and blankets for cots or prams.” Protestant asserts that the Snuggies® fall under these definitions for a blanket, even though the Snuggies® have sleeves. Moreover, Protestant asserts that heading 6301, HTSUS, is an eo nomine provision and covers all forms of the named article, including blankets with sleeves. See Len-Ron Mfg., 334 F.3d at 1311.
Protestant claims that heading 6301, HTSUS, is an eo nomine provision and we agree, however, under Quon Quon, we should consider the blanket’s use. 46 C.C.P.A. at 73. According to the ENs and the dictionary definitions, a blanket’s use is to provide a covering for warmth, especially on a bed. We agree with Protestant that the Snuggies® are large pieces of woven material used as a covering for warmth. However, the Snuggies® do not satisfy the second half of these cited dictionary definitions because they are not designed as a covering for beds. The sleeves on the Snuggies® prevent the Snuggies® from laying flat on a bed. A Snuggie® would look bizarre as a bed covering or a throw for the sofa because the sleeves dangle from the middle of it.
Additionally, neither the ENs nor these dictionary definitions mention wearing a blanket. Here, we note that a sarong is more similar to a blanket than the Snuggie®. A sarong is a large, flat piece of fabric which women wrap around themselves in various styles to form skirts, shawls and dresses. While a sarong may look lovely as a bed covering or a sofa throw, CBP has consistently classified sarongs as garments in heading 6211, HTSUS. See, e.g. NY N021623, dated January 10, 2008, NY L83179, dated March 10, 2005, and NY I87485, dated November 15, 2002. Like sarongs, Snuggies® are coverings for comfort and protection because human beings wear them. As such, we do not find that the Snuggies® are prima facie classifiable as blankets of heading 6301, HTSUS.
In addition to dictionary definitions and ENs, Protestant also states that the Snuggies® are advertised, marketed and sold as blankets. Protestant asserts that retailers do not display Snuggies® in the apparel department of their stores. Rather, retailers will display Snuggies® in either the “as seen on TV” or bedding department of their stores. We note that all of these arguments pertain to a principal use analysis. Additional U.S. Rule of Interpretation 1(a), HTSUS, provides, in relevant part, that: “a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.” To determine whether an article is included in a particular class or kind of merchandise, CBP considers a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the channels, class or kind of trade in which the merchandise moves (where the merchandise is sold); (3) the expectation of the ultimate purchasers; (4) the environment of the sale (i.e., accompanying accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines the class. See United States v. Carborundum Co., 536 F.2d 373, 377 (Cust. Ct. 1976).
Thus, Protestant urges us to apply the Carborundum factors to the Snuggies® and to determine that they are of the same class or kind of goods as blankets. 536 F.2d at 377. However, Protestant asserts that blankets are an eo nomine provision. We have no precedent to apply a test for principal use provisions to an eo nomine provision. Under an eo nomine provision, products are described by name. As such, we are not persuaded by Protestant’s arguments which relate to the advertisement, marketing and retail placement of the Snuggies®.
Protestant also suggests that the Snuggies® are prima facie classifiable under more than one heading. As such, Protestant suggests that CBP should apply GRI 3(a) to the Snuggies®. Under GRI 3(a), “the heading which provides the most specific description shall be preferred to headings providing a more general description.” Protestant asserts that the heading for blankets is more specific than the heading for knitted garments. As such, Protestant urges that we classify the Snuggies® as blankets under heading 6301, HTSUS. However, we have already determined that the Snuggies® are prima facie classifiable as garments under heading 6114, HTSUS. Under GRI 1, the Snuggies® are precluded from classification as blankets by Note 2(a) to Chapter 63. We do not need to proceed to GRI 3 to classify the Snuggies®.
Protestant also submits arguments pertaining to the registered trademark category for Snuggies®. The Snuggie® is registered with the U.S. Patent and Trademark Office (USPTO) in International Class of Goods Category 24. Category 24 covers “Textiles and textile goods, not included in other classes; beds and table covers.” Protestant notes that Snuggies® are not registered under Category 25, which covers “Clothing, footwear, headgear.” However, as the CIT noted in Inabata Specialty Chemicals v. United States, 29 C.I.T. 419, 424 (2005), “definitions and classifications of other agencies do not control tariff classifications.” citing Marubeni Am. Corp. v. United States, 17 CIT 360, 369 (1993), aff'd, 35 F.3d 530 (Fed. Cir. 1994) (vehicle regulated as a "truck" by other agencies classified for tariff purposes as passenger vehicles). As such, the USPTO trademark registration category does not control our tariff classification of the Snuggies®.
Protestant also cites to many CBP rulings which classify blankets with certain apparel features as blankets under heading 6301, HTSUS. According to 19 C.F.R. § 177.9(a), “a ruling letter issued by [CBP] under the provisions of this part represents the official position of [CBP] with respect to the particular transaction or issue described therein and is binding on all [CBP] personnel … until modified or revoked.” However, under 19 C.F.R. § 177.9(b)(2), “each ruling letter setting forth the proper classification of an article under the provisions of the [HTSUS] will be applied only with respect to transactions involving articles identical to the sample submitted with the ruling request or to articles whose description is identical to the description set forth in the ruling letter.” In this regard, we reassert that CBP has issued six rulings which classify rectangular fabric with sleeves as garments in heading 6114, HTSUS. See NY N128837, NY N096949, NY N074164, NY N061295, NY N056515 and NY N055235. None of the rulings cited by Protestant pertain to rectangular fabric with sleeves. As such, these rulings are not binding on our tariff classification of the Snuggies®.
First, Protestant cites to several rulings which classify blankets with hoods and pockets as blankets of heading 6301, HTSUS. See NY G82772, dated October 30, 2000 (hood and pocket), NY H85985, dated December 20, 2001 (hood and pocket), NY J84402, dated June 3, 2003 (hood), and NY L84492, dated May 20, 2005 (hood and pocket). All of these rulings are distinguishable from the Snuggie® rulings because none of them involve rectangular fabric with sleeves which a person can wear. Rather, all of these products lay flat and can be used as a covering for a bed, crib or playpen.
Next, Protestant cites to several rulings which classify blankets with snaps and zippers as blankets of heading 6301, HTSUS. See NY C83807, dated February 10, 1998, NY F83239, dated March 7, 2000, NY M80480, dated February 22, 2006, and NY N023565, dated March 5, 2008. According to the descriptions in these rulings, these blankets all lay flat, but may be snapped and zippered, enclosing the user like a sleeping bag. Again, this merchandise is distinguishable from the Snuggies®.
In addition, Protestant cites to two cases which involve Christmas Stocking Blankets. See NY N063742, dated June 18, 2009, and NY N103543, dated May 14, 2010. According to these two rulings, the subject merchandise was a blanket shaped like a Christmas stocking with arm and leg holes. The consumer could slide inside the Christmas stocking and place his/her hands and feet out from the stocking if he/she chose to do so. This merchandise is nothing like the Snuggies® and therefore does not control our tariff classification of the Snuggies®.
In a similar vein, Protestant also argues that CBP has classified blankets with apparel features under heading 6307, HTSUS, as other made up articles. See, e.g. HQ 952204, dated April 12, 1993 (swim sweater with attached flotation inner tube), NY D85676, dated December 18, 1998 (combination picnic blanket/cushion/poncho), NY H81207, dated June 6, 2001 (combination picnic blanket/cushion/poncho), HQ 963782, dated March 22, 2002 (belt to hold shotgun shells), NY N052230, dated February 20, 2009 (blanket with attached legs and feet for babies). Protestant urges that we reconsider our classification of the Snuggies® in light of these rulings. Again, we note that rulings on distinguishable merchandise are not binding on our classification of the Snuggies®. 19 C.F.R. § 177.9(b)(2).
In sum, the Snuggies® satisfy the CIT definition of a garment set forth in HIM Fathom. 21 C.I.T. at 781 Consumers wear the Snuggies® for comfort, which is one of the enumerated uses for wearing apparel under the TSUS, as well as for garments in cases under the HTSUS. Rubie’s Costume Co., 337 F.3d at 1357 citing Antonio Pompeo, 40 Cust. Ct. at 364. Additionally, Snuggies® are worn for protection, another use for garments cited by the CAFC. Id. For all these reasons, the Snuggies® are classifiable as garments of heading 6114, HTSUS. As such, they are precluded from classification in Chapter 63 by Note 2(a) to Chapter 63.
HOLDING:
By application of GRI 1 (Note 2(a) to Chapter 63), the Snuggies® are classified in heading 6114, HTSUS. They are specifically provided for in subheading 6114.30.30, HTSUS, which provides for: “Other garments, knitted or crocheted: Of man-made fibers: Other…” The 2009 column one, general rate of duty is 14.9 percent ad valorem. You are instructed to DENY the protest.
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 on the World Wide Web at www.usitc.gov.
You are to mail this letter 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 this letter, the Office of International Trade 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