CLA-2 RR:TC:TE 960424 CAB
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
Division