CLA-2 CO:R:C:T 950214 SK

Mr. Tommy Lai
Second Secretary
Hong Kong Economic & Trade Office
British Embassy
1233 20th Street, N.W., ste. 504
Washington, D.C. 20036

RE: Classification of a women's chemise-style garment; slips v. sleepwear; 6208.11.0000 v. 6208.22.0000, HTSUSA; GRI 3(c)

Dear Mr. Lai:

This is in response to your letter of August 9, 1991, requesting classification of a women's garment on behalf of the importer, Undercoverwear Inc.. A sample was submitted to Customs for examination and will be returned to you under separate cover.

FACTS:

The submitted sample is a women's chemise-style 100% polyester woven garment to be imported from Hong Kong. There is a scalloped 2-1/4 inch raschel lace edging sewn to the straight top front of the garment. The article has a flared shirttail bottom which reaches to the mid-thigh and non-adjustable shoulder straps.

ISSUE:

Whether the article at issue is properly classifiable as a women's nightgown or slip?

LAW AND ANALYSIS:

Classification of merchandise is in accordance with the General Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). GRI 1 provides that for legal purposes, classification shall be determined

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according to the terms of the headings in the tariff and according to any pertinent section or chapter notes taken in order.

Heading 6208, HTSUSA, provides for, inter alia, women's slips and nightgowns. As the subject merchandise is undeniably either a women's slip or a nightgown, the garment is properly classifiable under this heading in the Nomenclature. It is at the six digit level in heading 6208, HTSUSA, that the determination as to this garment's identity will be made.

The article at issue is of a type often identified as a "chemise". The term "chemise" itself is not determinative of classification inasmuch as this term is commonly used to describe both sleepwear and slips. In fact, the term "chemise" does not describe a specific article of clothing at all, but rather a style of garment which is understood to encompass one piece articles with thin straps (both adjustable and non-adjustable) and simple, straight, loose silhouettes.

As the term "chemise" is not determinative of classification, and the garment appears suitable for use as either sleepwear or a slip, this office will apply the test it used for the classification of ambiguous garments in Headquarters Ruling Letter (HRL) 951184, dated June 19, 1992. In that ruling Customs set forth its position on how women's teddies should be classified where it was not readily apparent whether they were sleep teddies or daywear teddies. We stated:

The determinative test is the teddy's suitability for use as either underwear or sleepwear; if the garment is clearly unsuitable for use as one type of garment, it is classifiable as the other. If the article is equally suitable for use as sleepwear or underwear, classification will then be determined on the basis of extrinsic evidence demonstrating how the garment is designed, manufactured, marketed, sold and used. If no evidence is submitted which conclusively designates the article as sleepwear or daywear, Customs will apply a GRI 3(c) analysis to determine the proper classification of the subject merchandise.

In applying the above test to the merchandise at issue, we find that a physical examination of the garment's design and characteristics merely affirm our initial determination that the chemise-styled garment is suitable for use as both sleepwear and daywear. Similarly, examination of the limited evidence submitted to this office as to how this garment is designed, marketed, sold and used is also inconclusive. The only

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information we have received in this regard states that the garment is described as a nightgown in an invoice description and that an employee of Undercoverwear Inc. (a Ms. Palladino) considers the garment a nightgown. This is not persuasive evidence. Invoice descriptions and other internal documentation may be self-serving and, without further, more compelling, evidence as to how this garment is designed, marketed and sold, we are unwilling to classify the subject merchandise as a nightgown based on this evidence alone.

No single subheading covers the subject merchandise in its entirety and accordingly classification cannot be accomplished by application of GRI 1 alone. There are two competing subheadings which are equally specific with regard to this merchandise, 6208.11.0000 and 6208.22.0000, HTSUSA, therefore GRI 3(a) does not provide the relevant analysis.

GRI 3(b) is not determinative either because the garment at issue is not comprised of component parts or put up as a set for retail sale.

GRI 3(c) sets forth that when goods cannot be classified by reference to GRI 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. Accordingly, the article at issue is properly classifiable as a nightgown under subheading 6208.22.0000, HTSUSA as that is the subheading which occurs last in numerical order as between the two relevant subheadings providing for slips and sleepwear.

HOLDING:

The article at issue is classifiable under subheading 6208.22.0000, HTSUSA, which provides for women's or girls' singlets and other undershirts, slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles: nightdresses and pajamas: of man-made fibers, dutiable at a rate of 17% ad valorem. The textile category is 651.

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 updated weekly and is available at your local Customs office.

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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 importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division