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HQ 950503

June 19, 1992

CLA-2 CO:R:C:T 950503 CMR


TARIFF NO: 6208.11.0000

Alan Klestadt, Esq.
Harold Grunfeld, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49th Street
New York, New York 10017

RE: Classification of certain garments manufactured by Mast Industries (Far East) Limited; slips v. sleepwear; 6208.11.00, HTSUSA v. 6208.22.00, HTSUSA

Dear MM. Klestadt & Grunfeld:

This ruling is in response to your request of October 14, 1991, and numerous supplemental submissions, on behalf of your client, Mast Industries (Far East) Limited.


At issue are women's woven garments known as "chemises" and imported from Hong Kong, China and Taiwan by Mast Industries (Far East), Ltd. The garments are imported for sale in Victoria's Secret Stores, Victoria's Secret Catalogue, Lane Bryant, and Cacique Lingerie. Several sample garments were received by this office for examination. It is our understanding that notices of redelivery have been issued on some of these garments, that protests have been filed in response to the notices, and that the port of Cleveland is delaying issuing a response to the protests until this office has determined if the garments are classifiable as slips or as sleepwear.

Although you have presented numerous garments for examination, we will limit this ruling to six specific styles: VS-978, VSC-906, VC-9018, VSI-130, C-6130 and VSC-9042.

VS-978 is made of 100 percent polyester woven fabric. The garment has a V-front with a tear-drop opening featuring a single covered button at the top of the tear-drop and bottom of the V- front. The garment features adjustable spaghetti-style shoulder
straps, a straight back, straight sides that flair slightly at the bottom and a hemmed bottom. The shoulder straps are of a contrasting color and the capping along the V-front and straight back are of another color making this a multi-color garment.

VSC-906 is made of 100 percent polyester woven floral print fabric. It features spaghetti-style shoulder straps, a slightly scalloped V-front, a straight back, and a hemmed bottom. The garment is constructed with four panels in the front and three panels in the back which are sewn together lengthwise. This construction causes the garment to be more fitted at the waist area and flair somewhat from the waist to the hem.

VC-9018 is made of 100 percent polyester woven fabric with 100 percent nylon lace. The garment features spaghetti-style shoulder straps, a V-front formed by a scalloped, lace insert, a lace-trimmed bottom, and a straight back. The garment is constructed with three panels in the front and three panels in the back sewn together lengthwise. This construction causes the garment to be more fitted at the waist area and flair somewhat from the waist to the hem.

VSI-130 is made of 100 percent polyester woven fabric. the garment features spaghetti-style adjustable shoulder straps, a V-shaped lace insert that forms the V-front, a slight V-shaped back, rounded bottom, and lace inserts on the front panel at the bottom corners.

C-6130 is made of 100 percent polyester woven fabric. The garment features spaghetti-style shoulder straps, a V-shaped front with a two-inch lace trim, a straight back and a hemmed rounded bottom.

VSC-9042 is made of 100 percent polyester woven fabric. the garment features spaghetti-style shoulder straps, a V-shaped front, a straight back and a straight hemmed bottom.


Are the subject "chemises" classifiable as slips or as sleepwear?


Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

The difficulty presented by the garments at issue is that they are not clearly slips or nightgowns. A simple visual examination of the garments may lead to conflicting results depending upon who is reviewing the garments. They are fashion creations merely described as "chemises".

The term "chemise" may be used to describe a variety of clothing, i.e., a chemise dress, a chemise nightgown or a chemise slip. The term itself refers to the styling or cut of the garment--a simple, straight, loose hanging garment.

Mary Picken's The Fashion Dictionary, (1957), at 342, defines slip as: "1. Underslip usually made the length of the dress with which it is to be worn. Takes the place of lining. 2. Undergarment combining corset cover or brassiere and petticoat." A chemise slip is defined in Charlotte Mankey Calasibetta's Fairchild's Dictionary of Fashion at 25, as "Thigh- length slip of the late 1960s which hangs straight and is not fitted."

"Nightgown or night dress" is defined in Picken's The Fashion Dictionary at 256, as: "Chemise type of garment, sleeved or sleeveless, with soft details, worn while in bed. During mid- 20th century, sometimes made top-of-the-hip length." On the same page appears the definition for "night clothes of nightdress": "Garments worn while in bed by men, women, children." The Court of International Trade in Mast Industries, Inc. v. United States, 9 CIT 549, 552 (1986) cited Webster's Third New International Dictionary's definition of "nightclothes" as "garments to be worn to bed."

Basically, the classification determination turns on whether the subject garments are designed and suitable for wear under outer clothing as slips and there is reasonable expectation that the garments are principally used as such, or whether the garments are designed and suitable for wear in bed and there is reasonable expectation that the garments are principally used in that manner.

Arguments have been made that these garments are multiple use garments, i.e., that they may be used as slips or as nighties. This office agrees with this assertion, however, the Court of International Trade in Hampco Apparel, Inc. v. United States, 12 CIT 92, 96 (1988), citing Trans-Atlantic Co. c. United States, 67 Cust. Ct. 296, 299, C.D. 4288 (1971), aff'd, 60 CCPA 100, C.A.D. 1088, 471 F.2d 1397 (1973), stated: "The primary design, construction, and function of an article will be determinative of classification, whether or not there is an incidental or subordinate function." Additionally, Note 1(a) of the Additional U.S. Rules of Interpretation of the HTSUSA directs that a tariff classification controlled by use (other than actual
use) is determined by the principal use in the United States at, or immediately prior to, the date of importation of the goods of the class or kind to which the imported goods belong. Therefore, in the case of a garment susceptible of multiple uses, if a principal use can be established, that use will be determinative of the classification.

Because these garments are not clearly discernable as slips as opposed to nightgowns, it is necessary to go beyond the garments themselves. Documentation and oral representations have been presented to support the claim that these garments are designed to be worn under outer clothing as slips. This office has reviewed extensive submissions by counsel for the importer and met with counsel and representatives of Mast, Victoria's Secret and Cacique. We have also carefully reviewed previous court decisions which have bearing on this matter.

In the court cases discussed below which were decided under the previous tariff, the Tariff Schedules of the United States, the test for establishing use was that of chief use, i.e., that use which exceeds all others combined. Under the current tariff, the Harmonized Tariff Schedule of the United States, the use test is less stringent and therefore easier to satisfy. Under the HTSUS, the test is that of principal use, i.e., that use which exceeds any other.

In Mast, the court ruled that the garment at issue therein was designed, manufactured, marketed and used as nightwear and therefore classifiable as nightwear. In St. Eve International, Inc. v. United States, 11 CIT 224 (1987), the court ruled the garments at issue therein were manufactured, marketed and advertised as nightwear and proved to be chiefly used as nightwear. In Mast, at 551, the court discussed the design of the garment at issue therein. The designer of the garment and an accounting executive for Mast testified the garment at issue therein was designed, ordered and promoted as nightwear and was intended to be used as such. In this case, Customs has received similar representations regarding the garments at issue herein. As in Mast, the garments under consideration are claimed to be based on European garments. The importer and their counsel can and have presented a formidable and persuasive case regarding the design of the subject garments as slips; a case Customs would find difficult to refute.

As to the manufacturing and intended use of the garments, the court in Mast, at 551, cited Novelty Import Co. v. United States, 60 Cust. Ct. 574, 582, C.D. 3462, 285 F. Supp. 160, 165- 66 (1968), in which the Customs Court stated:

It has long been held that importers and merchants have every incentive for knowing the uses to which their goods
are or may be put * * *. In a number of recent cases, this court has had occasion to point out that executives concerned with designing, framing specifications, ordering, importing, selling, distributing, and promoting an article have to know its chief uses and are competent to testify about them. (citations omitted).

This office has received written and oral representations from the importer and its counsel regarding the design, specification, manufacture, ordering, importations, selling, distribution and promotion of the subject garments. Customs has been informed that the garments are manufactured in underwear factories and purchased by underwear/daywear buyers or departments. Internal documentation and invoices presented by counsel for the importer support this assertion and these are factors which the court has considered in previous cases such as Mast and St. Eve. However, it should be noted that Customs recognizes that internal documentation and descriptions on invoices may be self-serving and should be considered in totality with other evidentiary information. Indeed, the Court of International Trade in ruling on the classification of certain garments known as "leggings" noted: "The court is not highly persuaded by plaintiffs invoices or advertising calling the items 'tights.' To avoid pants quota limitations plaintiff must refer to the items as 'tights.'" Regaliti Inc. v. United States, Slip- Op. 92-80, at 5. Therefore, while Customs will recognize and consider the descriptions on internal documents and invoices presented, it will not view them as determinative of a classification, but merely a consideration.

As to the promotion or advertising of the subject garments, this is where the importer's case has fallen short. Customs has been presented with information regarding the display of the garments in Victoria's Secret stores, but we find floor plans in this case of little value. The display of the garments in the Victoria's Secret stores creates an ambiguity in regard to these garments. Of significance, however, is the decision by the importer to identify these garments on the price tags with designations which will be present at importation and remain on the garments for the consumer to read at point of sale. The garments will be clearly identified as slips. This identification will dispel any ambiguity for the consumer as to the intended use of the garments.

Returning to the criteria set forth by the court decisions cited above, the importer can and has provided evidence regarding the primary design, construction and intended function of the garments at issue. They have also provided information regarding the manufacture of the garments, have shown that the garments are designed to be used as slips and are indeed usable as slips. Without substantial evidence to the contrary, Customs will accept
the importer's claim that the garments are principally used as slips. Customs accepts the importer's claim that the garments are designed, manufactured and used as slips.

Fashion is a constantly changing world and the use of brightly colored fabrics and decorative lace and appliques cannot be viewed as determinative of a garment's use as underwear or nightwear or even outerwear. Provided that the construction of the garment does not prevent its use in the manner claimed and the importer is able to meet the criteria discussed above, it is difficult for Customs to reject the claimed classification.


The garments at issue, styles VS-978, VSC-906, VC-9018, VSI- 130, C-6130 and VSC-9042, are classifiable as slips of man-made fibers of subheading 6208.11.0000, HTSUSA, textile category 652, dutiable at 17 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, the 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 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 updated weekly and 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.


John Durant, Director
Commercial Rulings Division

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