HQ 951184

June 19, 1992

CLA-2 CO:R:C:T 951184 SK

CATEGORY: Classification

TARIFF NO\'s.: 6208.92.0030; 6208.99.6030

Alan R. Klestadt

Judith A. Schecter

Grunfeld, Desiderio, Lebowitz & Silverman

12 East 49th Street

New York, N.Y. 10017

RE: Classification of women\'s teddies imported by Mast Industries

(Far East) Limited; sleepwear v. daywear; 6208.21.00, HTSUSA v.

6208.92.00 and 6208.99.60, HTSUSA

Dear Mr. Klestadt and Ms. Schecter:

This is in response to your inquiry of March 26, 1992, on

behalf of Mast Industries (Far East), Ltd., requesting the

classification and textile category of six different styles of

women\'s garments referred to as teddies. Samples were submitted

for examination and will be returned to you under separate cover.

FACTS:

Six styles of women\'s garments were submitted to this office

for classification.

Style C-6188 is a woven teddy constructed from 100% sheer

silk fabric. In Mast\'s purchase order for this article,

referenced as Exhibit B in your June 10, 1992 submission, it is

stated that the garment is constructed from 100% polyester. The

sample received by this office is 100% silk and classification

will be based on this fact. The garment features a V-shaped

neckline, 3/4 inch shoulder straps and a three-snap unlined

crotch. The teddy has side, center and rear seams and a pieced-

in bust. The garment extends from the top of the shaped bust to

the top of the thigh where the garment has loose leg

openings which extend approximately 1 1/2 inches from the crotch.

Style C-6172 is a woven teddy constructed from 100%

polyester fabric. The garment features twin spaghetti straps,

overlapped V-shaped neckline, elasticized waist, a 65 inch long

and 3/4 inch wide waist tie held by two side loops and a three-

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snap unlined crotch. Two triangular-shaped lace inserts are

stitched to where the shoulder straps connect. A tapered

scalloped edge lace ruffle is used to trim the high cut,

unelasticized leg openings.

Style VS-6187 is a woven teddy constructed from 100%

polyester fabric. The garment features a V-shaped neckline, 3/4

inch shoulder straps and a three-snap unlined strap. The upper

front portion is constructed from a single panel which extends to

a rounded dropped waist. The V-back has a center seam. The

flared full leg openings extend approximately 3/4 inches from the

crotch and are cut at a slight angle.

Style C-6169 is a woven 100% polyester teddy. The garment

is supported on the body by pleated straps which taper at the

points at which they join the body of the garment. The teddy

features a slight \"V\" neckline which is adorned by scalloped

raschel knit lace trim. The back of the garment has a straight

cut and features a small raschel knit insert. Other lace inserts

adorn the sides of the garment\'s waist. The teddy has wide leg

openings and has a three-snap crotch.

Style VS-1901 is a woven 100% polyester teddy with

approximately 3/4 inch adjustable shoulder straps, a crossed \"V\"

neckline and a straight cut across the back. Both sides of the

garment have two-ribbon ties and the hips and buttocks are

covered by a raschel knit lace flounce. The teddy has a three-

snap crotch and elasticized leg openings.

Style I6381 is a woven 100% polyester teddy. The garment

has 3/8 inch wide adjustable shoulder straps, a front \"V\"

neckline and is cut straight across the back. The teddy also

features a 2 1/2 inch wide raschel knit lace trim around the \"V\"

neckline and front of the bust to the sides. There are two 1

inch wide lace inserts in the garment running the length of the

front of the teddy from the top outer sides of the breasts

diagonally to the teddy\'s crotch. There is also lace trim all

around the other edges of the garment. The teddy has high-cut

leg openings and features an unlined three-snap closure at the

crotch.

ISSUE:

Whether the subject merchandise is properly classifiable as

nightwear or as articles similar to underwear under heading 6208

of the Harmonized Tariff Schedule of the United States Annotated

(HTSUSA)?

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LAW AND ANALYSIS:

Classification under the HTSUSA is in accordance with the

General Rules of Interpretation (GRI\'s), taken order. GRI 1

provides that classification shall be determined according to the

terms of the headings and any relative section or chapter notes.

The determinative issue is whether the subject merchandise

is classifiable as sleepwear or as daywear at the subheading

level of heading 6208, 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.\" Classification is proper under

heading 6208, HTSUSA, as teddies may be properly designated as

either sleepwear or as articles similar to women\'s underwear,

depending on the individual characteristics of the garment.

The term \"teddy\" is not determinative of these garments\'

classification inasmuch as this term is commonly used to describe

both sleepwear and underwear-type garments. In Essential Terms

of Fashion: A Collection of Definitions, 1985 ed. by Charlotte

Mankey Calasibetta, a teddy is defined as a \"one-piece sleep

garment with low-cut wrap style front, high-cut legs, and

elasticized waistline.\" Although this definition refers to these

garments as \"sleep garments,\" this office recognizes that

teddies are also commonly used to describe underwear-type

garments which serve to act as slips and provide foundations over

which outerwear is worn. The above definition is also limited in

that teddies need not possess a wrap-style front nor high-cut

legs; this is illustrated by the Fall/Winter, 1991 issue of

Market Maker and the August, 1990 issue of Body Fashions/Intimate

Apparel which include drawings and photographs of models wearing

teddies which do not possess these features. In fact, the term

teddy does not describe a specific article of clothing, but

rather a style of garment which is understood to encompass one-

piece articles with thin straps which possess either looser,

flared shorts or fitted bottoms without leg extensions. Teddies

come in a variety of styles: they may be knit or woven, they may

have adjustable straps, fitted bodices or underwires, and they

may be quite simple or incorporate substantial amounts of lace,

embroidery or beading into their design. Any number of fabrics

may be used in the construction of these articles, but usually

finer fabrics such as silk and polyesters will be used.

It is current commercial practice for teddies to be

marketed, sold and used by consumers as both sleepwear and

daywear. The issue of whether a particular teddy is nightwear or

daywear depends, in large part, on whether the article\'s design

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renders it exclusively suitable for use as one or the other. For

example, knit teddies possessing fitted bodices or underwires,

adjustable straps, no leg extensions and no adornment to

interfere with the drape of outerwear, are classifiable as

underwear. This type of teddy would be unsuitable for use as

nightwear because it is too tight and restrictive for comfort

while sleeping. Conversely, woven teddies possessing features

which would interfere with the drape of outerwear (i.e.,

excessive lace, ruffles, exaggerated leg extensions, etc \...)

render such garments unsuitable for use as underwear.

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, Customs determined upon physical

examination of the submitted samples that the teddies possess

physical characteristics which render them equally suitable for

use both as sleepwear and as daywear. Because these garments are

not clearly discernable as sleepwear or daywear, it is necessary

to go beyond classification based on physical attributes and to

examine counsel\'s submitted evidence. This office has reviewed

your extensive submissions and has met with counsel and

representatives of Mast, Victoria\'s Secret and Cacique. The

submissions contained evidence documenting how these garments are

designed, internally marketed and how they will be presented to

the ultimate consumer at point of sale.

In Mast Industries, Inc. v. United States, 9 CIT 549,

(1986), the Court of International Trade ruled that if an article

is designed, manufactured, marketed and used as nightwear, it is

classifiable as such. The court was persuaded of the article\'s

design by testimony offered by the plaintiff\'s designer of the

garment and its accounting executive whose testimony established

that the garment was designed, ordered and promoted as nightwear

and was intended to be used as such. Similarly, in the instant

case, you have provided documentation that the garments are based

on Canadian daywear prototypes and, as set forth in your June 10,

1992 submission, you have provided factory certifications which

state that the factories used to manufacture these teddies are

exclusively lingerie factories and the \"specifications utilized

in the manufacture of the subject styles are those typically

utilize\[d\] (sic) in the manufacture of underwear.\"

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Documentation was also provided with regard to the

marketing, sale and use of these garments. The teddies are

referred to in several of the Mast purchase orders as articles

\"intended to be worn under another garment\". The purchase orders

also designate these garments as being within the daywear

division. You have also informed this office that the importer

has decided to include language on each article\'s price tag which

identifies the garment as a \"DAYWEAR TEDDY\". This is persuasive

evidence of how the garment is to be used, as the Mast court

recognized that consumers are likely to use goods as they are

marketed and/or displayed.

We note at this point that the use of internal documentation

alone may not be enough to establish the identity of a garment

should a physical examination of the garment lead to a contrary

conclusion. There is the inherent danger that such information

is self-serving, as was recognized by the Court of International

Trade in Regaliti Inc. v. United States, Slip Op. 92-80, at 5, in

which the court stated that it was not \"highly persuaded by

plaintiff\'s invoices or advertising.\"

As stated above, examination of the subject merchandise

yields a finding that the teddies at issue are suitable for use

as either sleepwear or daywear. Extrinsic evidence substantiates

the importer\'s claim that the articles at issue are designed,

manufactured, marketed, sold and used as daywear. Without

substantial evidence to the contrary, Customs will accept the

importer\'s assertion that the subject merchandise is classifiable

as daywear.

HOLDING:

Styles C-6172, VS-6187, C-6169, VS-1901 and I6381 are all

classifiable under subheading 6208.92.0030, 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: other:

of man-made fibers\... other: women\'s. The merchandise is

dutiable at a rate of 17% ad valorem and the textile quota

category is 652.

Style C-6188 is classifiable under subheading 6208.99.6030,

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: of other textile materials: of silk or silk waste\...

other: containing 70 percent or more by weight of silk or silk

waste, dutiable at a rate of 7.5% ad valorem. There is no

textile category applicable to this garment at this time.

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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 your client 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.

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 its

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