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HQ 083981


June 2, 1989

CLA-2 CO:R:C:G 083981 SM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.32.0010

Mr. Bob Suszycki
Sanmark Stardust, Inc.
145 Madison Avenue
New York, NY 10016

RE: Tariff classification of "sleeper" and booties

Dear Mr. Suszycki:

Your letter of February 17, addressed to our New York office, requesting a tariff classification ruling for a women's "sleeper" and booties, has been referred to this office for reply.

FACTS:

A sample of Style 20M57015 was submitted. It consists of two parts: a one-piece women's sleep garment and a pair of booties, both constructed from 100 percent polyester bunting. The garment looks like an adult version of a children's "sleeper." It features rib-knit cuffs at the ankles and wrists, a rib-knit collar, and a 20-inch front zipper. It unsnaps at the waist at the back only; the waist is also elasticized at the back and has a string tie at either side which may be wrapped around and tied in front. The booties, of the same brushed knit fabric, have sewn-in soles and elastic at the ankles. They will be packaged for sale with the sleeper.

ISSUE:

Are the sleeper and booties classified separately or together?

LAW AND ANALYSIS:

Classification under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes and then, if the headings and notes do not otherwise require, in accordance with the remaining GRI's.

The "sleeper" is covered by heading 6108, HTSUSA, which includes women's and girls' nightdresses and pajamas and similar articles, knitted or crocheted. The booties are covered by heading 6405, HTSUSA, a provision for other foot- wear. No single heading provides for both the sleeper and the booties. Classification cannot be determined under GRI 1.

GRI 3 provides generally for the classification of goods that appear to be classifiable under more than one heading. GRI 3(a) provides that the more specific heading is to be preferred. However, when "two or more headings each refer to part only of the . . . items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods . . . ." In this case different head- ings each refer to part only of the goods to be classified. Thus classification cannot be determined according to which heading is more specific.

GRI 3(b) provides that "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 com- ponent which gives them their essential character . . . ."

The Explanatory Notes (EN), the official interpretation of the HTSUSA at the international level, for GRI 3(b) provide interpretation of the terms essential character and goods put up in sets for retail sale. The EN state 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 in a manner suitable for sale directly to users without repacking . . . .

In this case the goods to be classified consist of a textile garment and footwear prima facie classifiable in different headings. Although both articles are of types sold sepa- rately, they are put up together here as a coordinated sleep set to provide soft warmth for the torso, arms, legs, and feet. We assume that they are imported ready for direct sale without repacking. Thus they meet the requirements for classification as a set.

The EN state further that the factor determining which article of a set provides its essential character will vary with different kinds of goods. It may be "the nature of the material or component, its bulk, quantity, weight or value, or . . . the role of a constituent material in relation to the use of the goods." With regard to Style 20M57015, it is the sleep garment which, by its bulk, quantity, weight, value, and role provides the essential character. The booties are in the nature of an accessory, and would not be the main reason for the existence of the combination or the primary motivating factor governing its purchase.

HOLDING:

The sleeper and booties are classified under subheading 6108.32.0010, HTSUSA, textile category 651, a provision including other women's nightdresses and pajamas and similar articles, of man-made fibers, knitted or crocheted.

Because of the changeable nature of the statistical annotation, i.e., the ninth and tenth digits of the tariff number, and the textile restraint categories, you should con- tact your local Customs office before importation of this mer- chandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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