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HQ 952528


January 15, 1993

CLA-2 CO:R:C:T 952528 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6208.22.0000

Suzanne B. Barnett, Esquire
Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49th Street
New York, NY 10017

RE: Request for reconsideration of DD 875484; women's chemise style garment; sleepwear or slip; proper classification, sleepwear; subheading 6208.22.0000, HTSUSA

Dear Ms. Barnett:

This is in response to your letter dated September 4, 1992, on behalf of your client, G.J.M, requesting reconsideration of District Decision (DD) 875484, dated July 15, 1992, classifying a large size women's chemise as sleepwear. A sample was submitted for examination and will be returned to you under separate cover.

FACTS:

The submitted sample, Style 28638, was classified by our office in Norfolk, Virginia, as a sleepwear garment in DD 875484.

The article is a large size woman's chemise manufactured from a 100 percent woven polyester satin fabric. The garment extends to approximately three inches above the knee and features two inch wide nonadjustable shoulder straps, flared bottom, three button front closure and contrasting colored lace trim around the top edge and front opening.

ISSUE:

Whether the article in question may be classified as sleepwear in subheading 6208.22.0000, HTSUSA, or as a slip in subheading 6208.11.0000, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed according to the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied in the order of their appearance.

You state that the garment should be classified as a slip and refer to HQ 950689, dated June 30, 1992, to substantiate your claim.

You indicate that the shoulder straps were developed in response to requests by Lane Bryant customers for daywear with shoulder straps that would conceal brassiere straps. As such, you cite a specification sheet and purchase order which refer to the garment as a "trapeze strap chemise" and "chiffon strap chemise" respectively, as proof that the garment has been designed, marketed and sold as a slip.

A "chemise" is defined as:

1. The "easy-going type" of dress, cut slimly and with no definite waistline in sight. It drops from the shoulder, must fit well at the bosom and hips although it ignores the waist completely. Usually worn short for effectiveness and sometimes referred to as a "shift". George E. Linton, The Modern Textile and Apparel Dictionary, at 98, (1973)

2. Loose combination undergarment for women, hanging straight from the shoulders, covering torso. Originally, with or without sleeves, worn next to skin; formerly called shift, also smock. Mary Brooks Picken, The Fashion Dictionary, at 64, (1973)

3. A woman's one-piece undergarment; a loose straight- hanging dress. Webster's Ninth New Collegiate Dictionary, at 231, (1991)

These definitions illustrate that the term "chemise" is vague at best and is not exclusively attributed to slips.

As was stated in HQ 950214, dated July 16, 1992, classifying similar merchandise:

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.

When confronted with an ambiguous garment such as the submitted sample, whose use can be attributed to dual use, Customs has used a "suitability" test to determine classification. As was stated in Headquarters Ruling Letter (HRL) 951184, dated June 19, 1992, classifying women's teddies as either sleep teddies or daywear teddies:

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.

The instant garment differs significantly from those subject to HRL 950689. The garments of HRL 950689 lacked a button front closure and featured thin, self fabric shoulder straps. Neither convincing are the internal correspondence to which you refer, namely the specification sheet and purchase order. Documents such as these are self-serving and without further, more compelling evidence as to how this garment is designed, marketed and sold, we cannot base classification on this evidence alone.

Some aspects of the silhouette and styling of this garment are not ordinarily associated with slips. Such features include button fronts, non-adjustable straps, and wide different fabric straps which are gathered into the top edge. It is also our opinion that the bottom edge of the garment flares wider than would usually occur on slips. This type of garment is more commonly and commercially recognized as a nightdress.

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. As there is insufficient evidence to
substantiate a finding that the submitted garment is a slip, and the article does have some non-traditional slip features, it is Customs' opinion that Style 28638, was properly classified as sleepwear in subheading 6208.22.0000, HTSUSA.

HOLDING:

The garment, Style 28638, is a sleep chemise classified in subheading 6208.22.0000, HTSUSA. The applicable rate of duty is 17 percent ad valorem and the textile category is 651.

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 negotiations and changes, to obtain the most current information available we suggest your client check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service which is updated weekly and is available for inspection at the 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, your client should contact the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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