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.
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