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.
FACTS:
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 -2-
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.
ISSUE:
Are the subject "chemises" classifiable as slips or as
sleepwear?
LAW AND ANALYSIS:
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]."
-3-
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 -4-
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 -5-
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 -6-
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.
HOLDING:
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.
Sincerely,
John Durant, Director
Commercial Rulings Division