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HQ 955295


January 28, 1994

CLA-2 CO:R:C:T 955295 CMR

CATEGORY: CLASSIFICATION

TARIFF NO: 6208.11.0000, 6208.92.0030

Ms. Laurie Everill
J.C. Penney Purchasing Corporation
P.O. Box 10001
Dallas, Texas 75301-0001

RE: Classification of three styles of women's lingerie garments; classification of a teddy, chemise and camisole/panty set

Dear Ms. Everill:

This ruling is in response to your request of September 30, 1993, regarding the classification of three styles of women's lingerie garments. The garments are manufactured by Unichela Limited and will be imported from Sri Lanka. However, you indicate that the items may be manufactured in other countries or with other sources as your needs require. Samples of the garments at issue were submitted with your request for review by this office.

FACTS:

All of the submitted samples are made of 100 percent man-made fiber woven fabric. We presume the fabric is 100 percent polyester.

Lot #2204 (2205) is a chemise style garment made of 100 percent man-made fiber woven fabric. The garment is constructed with six major panels creating a close fit in the bodice and waist and six small triangular pieces sewn in at the bottom of the garment helping to create a fuller, flared effect at the bottom. The garment features adjustable spaghetti shoulder straps, a rounded front neckline, a straight line back and scalloped 55 percent polyester/45 percent rayon lace at the bottom.

Lot #2206 (2207) is a teddy made of 100 percent man-made fiber woven fabric with 100 percent nylon scalloped lace trim along the leg openings and the top of the garment. The garment -2-
features adjustable spaghetti shoulder straps, a V-front and straight back, high-cut leg openings, and a three snap cotton lined crotch.

Lot #2200 (2201) is a camisole and matching panty set. Both garments are made of 100 percent man-made fiber woven fabric. The camisole features adjustable spaghetti style shoulder straps, a V- front and straight back, a straight bottom and 100 percent polyester lace trim along the top and bottom of the garment. The panty features an exposed elasticized waist, high-cut leg openings, scalloped lace trim along the leg openings and a cotton lined crotch.

You have submitted information regarding the marketing of the subject garments including the division which purchases and sells the articles. In addition, you have indicated the garments will be identified on their price tickets. The chemise will be identified as a "slip"; the other garments as "daywear".

ISSUE:

Are the submitted garments classifiable as underwear or sleepwear of heading 6208, HTSUSA?

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]."

In classification, the most persuasive evidence is the garment itself. The court in Mast Industries, Inc. v. United States, 9 CIT 549, 552, (1985), aff'd 786 F.2d 1144 (CAFC, April 1, 1986), citing United States v. Bruce Duncan Co., 50 CCPA 43, 46 C.A.D. 817 (1963), pointed out that "the merchandise itself may be strong evidence of use."

Classification as underwear is being sought for the subject garments. Underwear is defined as: "Underclothes." The Fashion Dictionary, by Mary Brook Picken, at 397. Underclothes are defined therein at 396 as: "Garments worn under other clothes, including those worn next to skin." In Webster's II, New Riverside University Dictionary, 1984, at 1259, underwear is defined as "Clothing worn under the outer clothes and next to the skin."

The difficulty presented by the garments at issue is that based upon a summary visual examination, they are not clearly underwear or sleepwear, but could be used for either purpose. However, a closer look at the garments reveals features generally associated with underwear, i.e., adjustable shoulder straps and cotton lined crotches. The garments are designed to have a close fit and are made with soft, drapeable fabric. The garments exhibit no features which would preclude their use as underwear.

In addition to the primary factor, i.e., the physical suitability of the subject garments to use as underwear garments, the additional information submitted by you supports such a classification determination. The garments will be purchased and sold in a division of the store which specializes in daywear garments and the garments will be identified at point of sale to dispel any ambiguity regarding the intended use of the garment.

As stated in HRL 950503 of June 19, 1992, in a similar case, the classification determination basically turns on whether the subject garments are designed and suitable for wear under outer clothing as underwear and there is a reasonable expectation that they will be principally used as such, or whether the garments are designed and suitable for wear in bed and there is reasonable expectation that they will be principally used in that manner.

Based upon the garments themselves and taking into consideration the additional information submitted by you, Customs believes that the garments at issue are designed for use as underwear garments and there is a reasonable expectation that they will be principally used as such. While they could be used as sleepwear, such use would be a fugitive use in our view and not the use for which the garments are designed, marketed and sold.

HOLDING:

The chemise, lot #2204 (2205), is classified as a women's man- made fiber slip in subheading 6208.11.0000, HTSUSA, textile category 652, dutiable at 17 percent ad valorem.

The teddy, lot #2206 (2207), and the camisole and the matching panty, lot #2200 (2201), are classifiable as women's underwear garments of man-made fiber in subheading 6208.92.0030, 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 -4-
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

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