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HQ 960424




July 21, 1997
CLA-2 RR:TC:TE 960424 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.91.0030; 6208.91.3010; 6117.80.9000; 6217.10.9010

Anza Laplanche
Customs Manager
Montgomery Ward
Corporate Offices
Montgomery Ward Plaza
Chicago, IL 60671

RE: Classification of hair scrunchies and sleepwear garments; Heading 6108; Heading 6208; Heading 6117; Heading 6217; composites; sets; separates

Dear Ms. Laplanche:

This is in response to your inquiry of February 18, 1997, requesting a tariff classification ruling for certain articles pursuant to the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples were submitted for examination.

FACTS:

The goods at issue are mix and match sleepwear separates, composed of women's sleepwear garments described as Styles 2L3211MW, 2L1209MW, and 7K3120MW. Each garment is sold at retail with a matching self-fabric hair "scrunchie". Styles 2L3211MW and 2L1209MW are constructed from 100 percent cotton yarn dyed flannel woven fabric. Style 2L3211MW is a long sleep pant with a fully elasticized, gathered waistband with a non-functional tie. Style 2L1209MW is a short sleep bottom with a fully elasticized waistband and a one button fly front. Style 7K3120MW is a sleep top constructed of 100 percent cotton knit jersey material. The top has a V-neckline finished with ribbed knit trim and a small bow at the bottom of the V, long sleeves, and side vents. The garments will be sold as separates and the scrunchies will be given to consumers as free gifts for purchasing the garments.

ISSUE:

Whether the sleepwear garments and matching scrunchies are classifiable separately, as sets, or as composite goods?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's, taken in order.

There is no dispute that the woven sleepwear bottoms are classifiable under Heading 6208, which provides for women's or girls' sleepwear, and similar articles and that the knit sleepwear top is classifiable under Heading 6108, HTSUSA, which provides for women's or girls' knitted or crocheted pajamas and similar articles. There is also no dispute that if the scrunchies are classified separately from the garments, they are classifiable under Heading 6217, HTSUSA, the provision for other made up clothing accessories, or Heading 6117, HTSUSA, the provision for other made of clothing accessories knitted or crocheted. There is an issue as to whether the scrunchies and garments are classifiable separately, as composite goods, or as sets.

GRI 3 applies to goods that are prima facie classifiable under two or more headings. GRI 3 states, in pertinent part, the following:

(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.

The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), although not legally binding, are the official interpretation of the tariff at the international level. The EN to GRI 3(b), provides, in part:

(IX) For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

In essence, in order to be considered as composite goods, articles must be (1) adapted to each other, (2) mutually complementary and (3) form a whole which would not normally be offered for sale in separate parts. In this instance, the sleepwear garments and scrunchies are not adapted to each other. In prior cases, Customs has determined that goods which meet this first requirement are goods such as belts threaded through belt loops or button on suspenders designed to be worn with certain pants. See, Headquarters Ruling Letter (HQ) 084145, dated June 16, 1989. The scrunchies and sleepwear separates are mutually complementary in that they are constructed of the same fabric. Finally, the articles at issue would be offered for sale separately. Although the scrunchies are self-fabric. This type of article is available at retail as a separate commodity, i.e., it is not a flimsy article with no separate commercial identity. In accordance with the applicable EN, the subject scrunchies and sleepwear separates are not considered composites goods since although mutually complementary, the goods are not adapted one to the other and together they do not form a whole which would not normally be offered for sale in separate parts. See, HQ 954073, dated July 14, 1994.

Customs must now address whether the subject goods are considered "sets" for tariff classification purposes. The EN to GRI 3(b) indicate in pertinent part, that "goods put up in sets for retail sale" refer to goods which:

(a) consist of a 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.

In accordance with the applicable EN, the subject merchandise does not satisfy the "set" requirements. The goods consist of at least two different articles which are prima facie classifiable in different headings. There are questions as to whether the goods are put up together to meet a particular need or carry out a specific activity and whether the goods are put up in a manner suitable for sale directly to users without repacking. The garments are intended to be worn while sleeping. The primary function of the scrunchies is to keep hair in place. The two distinct functions are unrelated and do not serve a particular need. As the scrunchies and sleepwear garments do not meet all three criteria stipulated by the EN for sets, they are classifiable separately.

HOLDING:

Based on the foregoing, Style 7K3120MW is classified in subheading 6108.91.0030, HTSUSA, which provides for other women's pajamas and similar articles, other, of cotton. The applicable rate of duty is 8.8 percent ad valorem and the textile restraint category is 350. Styles 2L1209MW and 2L3211MW are classified in subheading 6208.91.3010, HTSUSA, which provides for other women's pajamas and similar articles, other, of cotton. The applicable rate of duty is 11.7 percent ad valorem and the textile restraint category is 352. The knit scrunchies are classified in subheading 6117.80.9005, HTSUSA, which provides for other accessories, other, headbands, ponytail holders and similar articles. The applicable rate of duty is 15.2 percent ad valorem. The woven scrunchies are classified in subheading 6217.10.9005, HTSUSA, which provides for other made up clothing accessories, other, headbands, ponytail holders and similar articles. The applicable rate of duty is 15.2 percent ad valorem and the textile restraint category is 359.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, The Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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