H313594

HQ H313594 May 21, 2021 OT:RR:CTF:FTM H313594 TSM CATEGORY: Classification TARIFF NO.: 6110.30.30 Center Director CEE – Apparel, Footwear and Textiles U.S. Customs & Border Protection 797 S. Zaragosa Rd. El Paso, TX 79907 Attn: Joy S. Davies, Import Specialist Re: Application for Further Review of Protest No. 2704-20-141606; Tariff Classification of The Comfy® Dear Center Director: The following is our decision with respect to the Application for Further Review (“AFR”) of protest number 2704-20-141606, timely filed by Stein Shostak Shostak Pollack & O’Hara LLP on August 26, 2020, on behalf of their client, Cozy Comfort Company LLC (hereinafter “Protestant”), regarding the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of The Comfy®. FACTS: At issue in protest no. 2704-20-141606 is The Comfy®, which is assembled by sewing together a 100 percent knitted microfleece exterior fabric with a sherpa interior fabric lining. The Comfy® features a neck opening, a hood, a frontal marsupial pouch pocket open at both ends, and long-sleeves with ribbed cuffs. The hemmed bottom extends to below the waist and is curved with the back panel slightly longer than the front panel. The Comfy® is sold in two sizes. The Comfy® Original™ is made for adults and children over 10 years of age and The Comfy® Original Jr. ™ for children ages 10 and younger. The Comfy® Original measures approximately 37 inches long by 38 inches wide with sleeves measuring 15 inches wide. The Comfy® is reversible. The subject protest covers one entry, entered on July 12, 2019, under heading 6301, HTSUS, and specifically under subheading 6301.40.00, HTSUS, which provides for “Blankets and traveling rugs: Blankets (other than electric blankets) and traveling rugs, of synthetic fibers.” The subject entry was liquidated on April 10, 2020, under heading 6110, HTSUS, and specifically under subheading 6110.30.30, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other.” In its protest, dated August 26, 2020, Protestant argued that The Comfy® is classified in heading 6301, HTSUS, as “Blankets and traveling rugs,” or alternatively in heading 6307, HTSUS, as “Other made-up articles, including dress patterns.” In support of this argument, Protestant stated the following: The Comfy® is not a pullover, because it is open on one side like a sleep sack and includes a hood, a frontal marsupial pouch pocket open at both ends, and sleeves with ribbed cuffs designed to allow ready access to the pocket. When placed over the average person’s body, The Comfy® covers most of the body down to, at, or below the knees, severely impeding mobility. The Comfy® does not come in various sizes, is marketed as a wearable blanket, and is sold in the bedding or promotional products areas in retail stores, not in the clothing area. The Comfy®, like many blankets, measures nearly equally as wide as it is long; approximately 37 inches wide and 38 inches high. The armhole, like the rest of the blanket, is extraordinarily large (15 inches) and was designed to make it simple for anyone to pull their arms into their body to be fully enclosed into the blanket. In fact, persons are expected to keep their arms within The Comfy® close to their sides for the most part; the sleeves are designed to be used only seldomly to access the marsupial pocket or make it easier to grab a remote control or food or drink while relaxing on a couch. In addition, the bottom hem has no elastic cuff and measures 76 inches around, a substantial circumference common to blankets and not found in upper body apparel. In Allstar Mktg. Grp., LLC v. United States, 211 F. Supp. 3d 1319 (Ct. Int’l Trade 2017), the court held that use may also be considered to classify an article pursuant to an eo nomine provision when the use of the subject article is an important aspect of its identity, or when determining whether the subject article fits within the classification’s scope, based on the following factors: (a) its physical characteristics and features; (b) how it was designed and for what objectives, (i.e., its intended use); and (c) how it is marketed. All three factors weigh heavily against classification of The Comfy® as a pullover, for the following reasons: With regard to the physical characteristics and features, The Comfy® is constructed as a blanket and has dimensions typical for a blanket (the bottom hem measures seventy-six inches around, a substantial circumference common to blankets and not found in upper body apparel), is constructed of thick microfleece and sherpa layers, is very soft, heavy, long, and loose-fitting (with overall length below the knees and sleeve length beyond arm length, which is limiting of the wearer’s overall mobility and use of hands), and also measures more than three feet by three feet, with more than enough room for a person to bring their knees to their chest in a fetal position without stretching the fabric, which is not possible with a pullover. With regard to the design and intended use, The Comfy® was designed and intended to be loosely worn as an outer layer roughly covering the top 75 percent of a user to provide warmth, while sitting on a couch or lying in bed, and was not designed or intended to be used as a “normal article of apparel.” The Comfy® is designed almost exclusively for use inside a home or other living quarter and is neither appropriate nor useful as exterior clothing in public, because it could only reasonably be utilized to cover the body for warmth for a short period of time, like a blanket, during an outdoor sporting event or while walking a dog. With regard to sales and marketing, Cozy Comfort refers to The Comfy® as a “blanket” or a “throw,” and has obtained trademark protection to use the mark The Comfy® on “fleece blankets,” not garments. The Comfy® is sold in the bedding, housewares, general merchandise, ‘impulse buy,’ or ‘as-seen-on-TV’ departments of retail stores, not in the apparel department, and is displayed next to items such as comforters and blankets. Retail packaging and television advertising consistently describe The Comfy® as, inter alia, a “wearable blanket providing warmth from the top of your head to the tips of your toes.” The marketing materials depict people using The Comfy® as a warm cover, providing the feeling of getting a “warm hug,” as one might use a blanket, albeit one held in place even while standing up and permitting greater use of the hands with the addition of the sleeves. Numerous U.S. Customs Border Protection (“CBP”) rulings support classification of The Comfy under Heading 6307. Specifically, at issue are the following rulings, classifying various products under heading 6307, HTSUS: New York Ruling Letter (“NY”) N247924 (classifying an extreme weather suit that is to be used as a body covering while sitting or standing, has a hood, and, given its length, impedes mobility, precluding classification as a garment); NY N257129 (classifying a float suit with sleeves, an elastic waistband, and a pocket); Headquarters Ruling Letter (“HQ”) H229993 and HQ H287565 (classifying a hooded wearable blanket with hand paws); NY N127837 (classifying a hooded wrap throw blanket); NY N259577 (classifying a hooded throw blanket); NY N215058 (classifying a hooded blanket); NY H81207 (classifying a hooded poncho/blanket/cushion); NY L80760 (classifying a bib apron); HQ 961296 (classifying a slumber bag with stuffed dog appendages); HQ H243928 (classifying a cocoon sleep sack); NY N302193 (classifying a hooded blanket); and NY R02983 (classifying a sleep sack). An image of The Comfy® is displayed below: 
 ISSUE: What is the tariff classification of The Comfy®? LAW AND ANALYSIS: Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification, applicable rate and amount of duties chargeable. The pro

Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification, applicable rate and amount of duties chargeable. The protest was timely filed, within 180 days of liquidation of the entries. (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. 2704-20-141606 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (a) because Protestant alleges that the decision against which the protest was filed is inconsistent with HQ H229993, dated July 30, 2013; HQ H287565, dated May 17, 2019; HQ 961296, dated March 21, 2000; HQ H243928, dated June 22, 2017; NY N247924, dated December 4, 2013; NY N257129, dated October 1, 2014; NY N127837, dated October 26, 2010; NY N259577, dated December 15, 2014; NY N215058, dated May 17, 2012; NY H81207, dated June 6, 2001; NY L80760, dated November 29, 2004; and NY N302193, dated February 5, 2019. Classification under the HTSUS is determined 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.  The 2019 HTSUS provisions under consideration are as follows: 6110 Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted* * *6301 Blankets and traveling rugs* * *6307 Other made up articles, including dress patterns * * * Note 7 to Section XI, which covers Chapter 63, HTSUS, provides in pertinent part: For the purposes of this section, the expression “made up” means: … (b) Produced in the finished state, ready for use…without sewing or ot