CLA-2 OT:RR:CTF:FTM H289552 TSM
Suzanne Lagay Kay
Franco Manufacturing Co., Inc.
555 Prospect Street
Metuchen, New Jersey 08840
RE: The tariff classification of the “Super Blanky ®” cape/throw and mask
Dear Ms. Kay,
This is in response to your request, on behalf of Franco Manufacturing Co., Inc., dated June 26, 2017, for a ruling regarding the classification of the “Super Blanky ®” cape/throw with coordinating mask under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The merchandise at issue is described as follows: “Super Blanky ®” – all in one cape/throw with coordinating mask. … This item will be sold in the bedding area of a store for young children between the ages of 3 to 12 years old. … The construction will be: 100% polyester – brushed both sides, dispersed printing fabric weighs 220 gsm bound with 1” binding. Inside the throw are two rectangular fabric pieces sewn along the longer sides of the rectangle in the top left and right corners which go around arms creating the cape. The overall measurements are 40” x 50”. The mask is rubber print on dyed felt, die cut with a 12” long, 3/8” width elastic band. [U]se will be warmth while playing.” You also provided samples of the “Super Blanky ®” cape/throw and coordinating mask for our examination. In addition, you stated that the two items will be sold together at retail sale.
ISSUE:
What is the tariff classification of the “Super Blanky ®” and coordinating mask under consideration?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.
GRI 2 provides in pertinent part as follows:
(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.
GRI 3 states that, when by application of GRI 2(b) 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,...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 7 to Section XI, which includes Chapters 50-63, provides that:
For the purposes of this section, the expression "made up" means:
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.
* * *
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff 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).
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.
* * *
EN 95.05(A)(3) provides as follows:
This heading covers:
(A) 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 textile materials, of Chapter 61 or 62.
* * *
EN to GRI 2(b) states the following:
(XIII) As a consequence of this Rule, mixtures and combinations of materials or substances, and goods consisting of more than one material or substance, if prima facie classifiable under two or more headings, must therefore be classified according to the principles of Rule 3.
* * *
EN to GRI 3(b) provides, in pertinent parts, the following:
(VIII) The 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.
(X) For the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean goods which:
(a) consist of at least two different articles which are, prima facie, classifiable in different headings...;
(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).
* * *
The HTSUS provisions under consideration are as follows:
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
* * *
We now turn to the tariff classification of the “Super Blanky ®” and mask. With regard to the “Super Blanky ®”, in your submission you argued that it is classified in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.”
Upon examination of the sample that you forwarded, we found that the “Super Blanky ®” is rectangular in shape and contains two smaller rectangular fabric pieces sewn along the longer sides, in the top left and right corners, which go around arms. It is constructed of 100% polyester. It will be sold in the bedding area of a store for young children.
In Allstar Mktg. Group, LLC v. United States, 211 F. Supp. 3d 1319, (Ct. Intl. Trade 2017), the Court of International Trade considered the tariff classification of the Snuggies® blankets, described as follows:
"The subject merchandise consists of an adult-sized Snuggie®… The Snuggie consists of polyester fleece knit, is made in one size only, and measures 71 inches by 54 inches. It has "sleeves" that are 28.5 inches long. There is no closure, and it is open in the back. The Snuggie® was inspired by the "Slanket®" and the "Freedom Blanket," two products already on the market that were marketed as blankets. … Commercial invoices in the subject entries described the Snuggie® as a "Snuggie Fleece Blanket" or "Snuggie Fleece Blnkt." Likewise, purchase orders from and invoices to Plaintiff’s retail customers describe the Snuggie® as a blanket. …
To produce the Snuggie®, the factory cuts polyester fleece knit into rectangles and hems all four sides using a machine over-locked or “blanket” stitch. Two holes are cut, and "tubes" of the same polyester fleece are sewn onto the holes. … Retail packaging and television advertising describe the Snuggie® as a blanket with sleeves. … The retail packaging shows users wearing the Snuggie® on their front with their arms through the sleeves while reclining or seated on an airplane, couch, bed, and floor, and engaging in activities such as reading, writing, knitting, holding a remote control, using a laptop, holding a baby, and playing backgammon. It also shows users wearing the Snuggie® outside, while seated, ostensibly cheering a sports team.
The television commercial displays text informing viewers that the Snuggie® enables users to use their hands (for example, to read a book), is made of “[u]ltra-soft fleece,” has “[o]versized sleeves,” is “[o]ne size fits all,” and will keep them “[w]arm from head to toe” “[a]nywhere you go,” including the outdoors. …
The Snuggie® is sold in the "bedding, housewares, general merchandise, 'impulse buy,' or 'as-seen-on-TV' departments of retail stores," never in the wearing apparel department.”
In Allstar Mktg. Group, LLC v. United States, upon considering several dictionary definitions of the term “blanket,” the court found, first, that a blanket is a large (possibly oblong) piece of fabric, and second, that a blanket is used as a covering for warmth, often, but not always, on a bed. The court further found that the key inquiry is whether the addition of sleeves transformed what may have been a blanket, into something that was not a blanket, but a garment. The court concluded that the Snuggie® was a blanket since it was marketed as such, and since it was packaged in retail packaging depicting people wearing it in the types of situations one might use a blanket (while seated or reclining on a couch or bed). In addition, the court also noted that the Snuggie® was shown in a television commercial being used in place of a blanket. With regard to the sleeves, the court concluded that they are incidental to the Snuggie®’s use as a blanket, since they are not so substantial as to transform the Snuggie® into something other than a blanket, and that they support, rather than detract from, the “primary design and use” as a blanket, because they ostensibly enable the Snuggie® to remain in place and keep the user warm while allowing the user to engage in certain activities requiring the use of their hands. The court thus concluded that the Snuggie® is correctly classified as a “blanket” under subheading 6301.40.00, HTSUS.
Upon review, we find that the “Super Blanky ®” at issue here is similar to the Snuggie®, at issue in Allstar Mktg. Group, LLC v. United States, in the following ways: both are rectangular in shape with no closure and are made of 100% polyester, both are sold in the “bedding” department, and both have sleeves. The sleeves of the “Super Blanky ®” are simply two smaller rectangular fabric pieces sewn along the longer sides, in the top left and right corners, and are not so substantial as to transform the “Super Blanky ®” into a different item. In fact, in its appearance and construction, the “Super Blanky ®” is nothing other than a small blanket. Therefore, we conclude that it is classified in subheading 6301.40.00, HTSUS, which provides for “Blankets and traveling rugs: Blankets (other than electric blankets) and traveling rugs, of synthetic fibers.” Although in your submission you also stated that the principal use of the “Super Blanky ®” cape/throw will be for warmth while playing, we note that subheading 6301.40.00, HTSUS, is an eo nomine provision. See GRK Canada, Ltd. v. United States, 761 F.3d 1354, 1361 (Fed. Cir. 2014) (the HTSUS has distinctive use and eo nomine provisions; defining eo nomine as that which “describes an article by a specific name.”)
Heading 6307, HTSUS, is a basket provision covering other made up articles, including dress patterns. This heading cannot be considered, since we have determined that the “Super Blanky ®” is classified in heading 6301, HTSUS.
Turning to the classification of the mask at issue, consistent with EN 95.05, cited above, we find that it is classified in heading 9505, HTSUS, and specifically in 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.” See NY N008580, dated March 23, 2007; NY N008586, dated March 26, 2007; NY N008592, dated March 27, 2007; NY N008596, dated March 27, 2007; NY N008601, dated March 27, 2007; NY N008604, dated March 27, 2007 (these rulings classify various masks in subheading 9505.90.60, HTSUS). We note, however, that based on the information that you provided, the mask will be imported together with the “Super Blanky ®,” as a set. As referenced above, EN (X) to GRI 3(b) provides that "goods put up in sets for retail sale" are those that:
(a) consist of at least two different articles which are, prima facie, classifiable in different headings...;
(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).
Upon review, we find that the “Super Blanky ®” and coordinating mask meet the requirements of GRI 3(b), since they are classified in different headings, they are put together to meet a particular activity - child play while wearing them, and are put up in a manner suitable for sale to users without repacking - they are packaged together as a set. As such, the “Super Blanky ®” and mask are classifiable by application of GRI 3(b) as “goods put up in sets for retail sale.”
Pursuant to the text of GRI 3(b), goods put up in sets for retail sale must be classified as if they consisted of the material or component which “gives them their essential character.” EN VIII to GRI 3(b) explains that “[t]he factor which determines essential character will vary as between different kinds of goods,” and may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods. Among those factors identified in EN VIII to GRI 3(b), recent court decisions concerning “essential character” analysis under GRI 3(b) have primarily focused on the role of the constituent material in relation to the use of the goods. See Estee Lauder, 815 F. Supp. 2d at 1296; see also Structural Industries, 360 F. Supp. 2d 1330; Conair Corp. v. United States, 29 C.I.T. 888 (2005); Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007).
Consistent with the guidance provided by the courts and the ENs to GRI 3, CBP observes that the essential character of a retail set is informed by the use or role of those component articles that are integral to the overall function of the set. Upon review, we find the “Super Blanky ®” is bigger in size and weight. When the two items are worn together, the “Super Blanky ®” has the appearance of the central and predominant piece. The mask’s role is secondary. Accordingly, we find that the essential character of the set is determined by the “Super Blanky ®”. See NY N274196, dated April 13, 2016 (finding that the essential character each one of the three costume sets consisting of is imparted by either a top or a robe, not mask); see also NY N238157, dated February 20, 2013 (finding that the essential character of each one of the three costume sets is imparted by either a robe or a tunic, not mask). Accordingly, we conclude that the “Super Blanky ®” and coordinating mask set is classified under subheading 6301.40.00, HTSUS, which provides for “Blankets and traveling rugs: Blankets (other than electric blankets) and traveling rugs, of synthetic fibers.”
HOLDING:
Pursuant to GRI 3(b), the “Super Blanky ®” and mask set at issue is classified under heading 6301, HTSUS, and specifically in subheading 6301.40.00, HTSUS, which provides for “Blankets and traveling rugs: Blankets (other than electric blankets) and traveling rugs, of synthetic fibers.” The general, column one, rate of duty is 8.5 % ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Elizabeth Jenior, Acting Chief Food, Textiles and Marking Branch