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HQ 951184

June 19, 1992

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


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.


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-
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.


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


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
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."

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.


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.

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.


John Durant, Director

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