CLA-2 CO:R:C:T 088454 CMR
Brian Burke, Esq.
Rode & Qualey
295 Madison Avenue
New York, New York 10017
RE: Revocation of Inconsistent Classification Rulings on
"Leggings"; Tights vs. Trousers; 6115, HTSUSA, vs. 6104,
HTSUSA
Dear Mr. Burke:
This ruling is in response to your request of January 8,
1991, regarding two inconsistent Customs rulings which your
client Regaliti, Inc., received on virtually identical
merchandise to be imported from Hong Kong. Customs received
additional submissions from you on this matter and the
information and arguments contained therein have been taken into
consideration in this response. Sample garments were received
for Customs consideration.
FACTS:
Your client, Regaliti, received a classification ruling from
New York Customs, NYRL 854333 of August 7, 1990, classifying
merchandise identified as styles 4892G and 4812G as tights of
heading 6115, HTSUSA. Subsequently, Regaliti received
classification rulings from Customs in Boston and Newark, BORL
857484 of November 6, 1990, for styles 4813 and 4811, and NJRL
857485 of November 19, 1990, for styles 4835 and 4999,
respectively. These rulings classified garments which were
extremely similar to styles 4892G and 4812G as trousers of
heading 6104, HTSUSA.
The garments which were the subject of the rulings at issue
are all made from 95 percent cotton/5 percent spandex knit
fabric. Each garment has an elastic waistband formed by a
nearly one-inch elastic band covered by the fabric of the
garment, a diamond-shaped gusset in the crotch and hemmed leg
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bottoms. The garments conform to the contours of the wearer's
body and differ only in length. It is claimed the garments were
designed for use during exercise.
ISSUE:
Are the garments at issue, styles 4892G, 4812G, 4813, 4811,
4835, and 4999, which are known as "leggings" properly
classifiable as tights of heading 6115, HTSUSA, or as trousers or
shorts (depending on garment length) of heading 6104, 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, provided such
headings or notes do not otherwise require, according to [the
remaining GRIs taken in order]."
Customs takes note of the fact that the garments at issue
are relatively new creations of the fashion industry, as is the
use of the term "leggings" to describe them. The term "leggings"
by which they are known commercially was not in wide-spread use
when the current tariff was adopted. However, the tariff does
contain a provision which includes leggings, i.e., heading 6406,
HTSUSA, which provides for, inter alia, gaiters, leggings and
similar articles. A gaiter is defined in The American Heritage
Dictionary, (2nd College Ed. 1982), as:
1. A leather or heavy cloth covering for the legs extending
from the instep to the ankle or knee. 2. An ankle-high shoe
with elastic sides. 3. An overshoe with a cloth top.
From the same source, leggings are defined as:
A leg covering of material such as canvas or leather.
Fairchild's Dictionary of Fashion, (2nd Ed. 1988), defines
legging as:
Covering for leg and ankle extending to knee or sometimes
secured by stirrup strap under arch of foot. Worn in 19th
c. by armed services and by civilian men. See PUTTEE and
GAITER. Worn by women in suede, patent, and fabric in late
1960s.
It seems clear from the above definitions that the leggings
classified in heading 6406, HTSUSA, are not the same merchandise
that is at issue here.
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In determining the proper classification of the garments at
issue, two headings clearly merit consideration. These are
heading 6104, HTSUSA, which provides for, inter alia, trousers,
breeches and shorts, and heading 6115, HTSUSA, which provides
for, inter alia, tights.
It is a well-established tenet of customs law that tariff
terms are construed in accordance with their common and
commercial meanings and that the common meaning of a tariff term
is a question of law. Toyota Motor Sales, U.S.A., Inc. v. United
States, 7 CIT 178, 182, 585 F. Supp. 649 (1984), aff'd, 753 F.2d
1061 (Fed. Cir. 1985). You assert that the garments at issue
here are classified under heading 6115, HTSUSA, as tights based
on the classification principle of eo nomine designation and the
common meaning of the term tights.
The HTSUSA and the Explanatory Notes to the Harmonized
System are silent on the meaning of the term tights. However,
trousers are defined in the Explanatory Notes as:
garments which envelop each leg separately, covering the
knees and usually reaching down to or below the ankles;
these garments usually stop at the waist; the presence of
braces does not cause these garments to lose the essential
character of trousers.
As the tariff is silent regarding the meaning of tights, it
is reasonable and proper to look to lexicographic sources. In
support of your contention you provided the following dictionary
definitions for tights:
A close-fitting, stretchable garment covering the body from
the waist or the neck down and worn especially by dancers
and gymnasts. Tormont Webster's Illustrative Encyclopedic
Dictionary (1990 Ed.)
Skin tight garments covering the body from the neck down or
from the waist down and worn especially for ease and display
by dancers, acrobats or gymnasts. Webster's Third New
International Dictionary, Unabridged (1961 Ed.)
Skin tight garments, usually for the lower part of the body
and the legs worn especially by performers in public.
Webster's New International Dictionary, Unabridged (2nd Ed.)
Skin-fitting garments, commonly for the legs and lower
torso. Funk and Wagnall's New Practical Standard
Dictionary (1956 Ed.)
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Heading 6115, HTSUSA, provides, in full, for panty hose,
tights, stockings, socks and other hosiery, including stockings
for varicose veins, and footwear without applied soles, knitted
or crocheted. As pointed out in your brief, the statutory canon
of construction "noscitur a sociis" is useful in determining the
common and commercial meaning of the term tights. With that in
mind, Customs has researched various lexicographic sources to
discern the common meaning of trousers and of tights, hose and
hosiery. The following pertinent definitions were found.
TROUSERS
An outer garment of men or boys, extending from the
waist to the knee or, oftener and almost always with
men, to the ankle, and covering each leg separately.
Orig. they were of the nature of long hose or tight
drawers and were worn esp. by sailors and soldiers.
Webster's New International Dictionary, Unabridged
(2nd Ed., 1939)
A usually loose-fitting outer garment for the lower
part of the body, having individual leg portions that
reach typically to the ankle but sometimes to any of
various other points from the upper leg down, worn esp.
by men and boys. The Random House Dictionary of the
English Language (1983)
An outer garment extending from the waist to the ankle
or sometimes only to or just below the knee, covering
each leg separately, made close-fitting or loose-
fitting in accordance with the fashion of different
periods, and worn typically by men and boys. Webster's
Third New International Dictionary, Unabridged (1986)
[Emphasis added]
Outer garment extending from the waist to below the
knee, covering each leg separately. Worn mostly by men
and boys. Formerly, very tight, similar to long hose.
Mary Brooks Picken, The Fashion Dictionary at 390
(1973)
TIGHTS
A skin-tight garment for the lower part of the body and
the legs, worn by acrobats, dancers, gymnasts, etc.,
now often made of stretch fabric; A leotard with legs
and, sometimes, feet. The Random House Dictionary of
the English Language (1983)
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Skintight garments covering the body from the neck down
or from the waist down and worn esp. for ease and
display by dancers, acrobats, or gymnasts. Webster's
Third New International Dictionary, Unabridged (1986)
A snug stretchable garment covering the body from the
waist or neck down, worn by acrobats and dancers and
also designed for general wear by women and girls. The
American Heritage Dictionary, (2nd. College Ed. 1982)
Garment worn skintight, usually covering hips and
legs, sometimes entire body. Worn especially by stage
performers. Formerly, close-fitting breeches. Mary
Brooks Picken, The Fashion Dictionary at 385 (1973)
Knitted pants and stockings made in one piece, usually
made of opaque-textured yarns, worn by athletes, circus
performers, and dance hall girls in latter part of the
19th c.; Women's and girls' below-the-knee underpants
made in fine ribbed knit in either black or white worn
in early 20th c.; See Pantyhose. Fairchild's
Dictionary of Fashion (2nd Ed. 1988); Also, in
Fairchild's within definition for aerobic ensemble:
tights are one-piece pantyhose with or without feet
and/or stirrups usually made of stretch nylon
Underpants and stockings knit in one piece, worn
originally by athletes, circus performers, dancers
. . . Charlotte Calasibetta Essential Terms of Fashion
(1986)
HOSE
A leg covering, in modern use covering also the foot,
but formerly sometimes reaching only to the ankle; a
stocking or stockings; Close-fitting covering for the
legs and waist of the general nature of tights, as
formerly worn, often fastened to the doublet by ribbons
or strings called points; later, breeches reaching only
to the knee. Webster's New International Dictionary,
Unabridged (2nd Ed., 1939)
A cloth leg covering that reaches down to the ankle and
sometimes covers the foot; stocking, sock (a pair of -)
-usu. used in pl.; A close-fitting garment similar to
tights that covers the body from the waist to and
sometimes including the feet and is usu. attached to a
doublet by points. Webster's Third New International
Dictionary, Unabridged (1986)
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Stockings, or covering for lower leg and foot, usually
knit or woven. Formerly not made to cover the foot.;
Tights, or hose reaching to the waist, formerly
fastened to doublet with points. Mary Brooks Picken,
The Fashion Dictionary at 195 (1973)
HOSIERY
Knit or woven coverings for the feet and legs designed
to be worn inside shoes, particularly women's stockings
and tights; also socks for men, women, and children.
The New Encyclopaedia Britannica Vol. 5, at 147 (1975)
(found at beginning of discussion of hosiery)
From these various definitions and applying the doctrine of
"noscitur a sociis", Customs concludes tights are a form of
hosiery. We do not believe the garments at issue herein,
Regaliti's leggings, are a form of hosiery. In Mast Industries
v. United States, 9 CIT 549, 552 (1985), aff'd, 786 F. 2d 1144
(1986), the court noted, citing United States v. Bruce Duncan
Co., 50 CCPA 43, 46, C.A.D. 817 (1963), "the merchandise itself
may be strong evidence of use." The garments at issue are form-
fitting and cover the lower torso and legs, however, upon
examination Customs believes they are more in the nature of
trousers, than hosiery. The above-cited definitions of trousers
indicate that they are garments which cover the lower torso from
the waist to the ankle or, sometimes, simply to the knee, and
cover each leg separately. At least one definition above
illustrates that trousers may be close-fitting depending on the
fashion. Additionally, Customs notes that although the cited
definitions refer to trousers as garments worn especially by men
or boys, women too wear trousers. Therefore, it would appear
that the garments at issue are within the definition of trousers,
including the definition contained in the Explanatory Notes of
the Harmonized System.
The meaning of the term tights was examined by the Customs
Court in Children's Hose Inc., v. United States, 55 Cust. Ct. 6,
C.D. 2547 (1965). In that case, the court stated:
[T]he court may take judicial notice of the fact that
leotards or tights whether worn by children or women are
designed to be at least partially utilized under an
outergarment and partially exposed, depending upon the age
of the wearer and the purpose for which they are worn. It
would, therefore, seem that if a portion of this imported
merchandise is underwear, a portion of it is not underwear.
By the same token, while the exposed portion may be
outerwear, the portion concealed would not be outerwear.
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Therefore, the articles at bar are more than underwear and
more than outerwear. They are, therefore, in fact "neither
fish nor fowl." (at 9 and 10)
It is clear from the language of the court, that tights are
garments which are partially underwear and partially outerwear.
The extent to which the garment is exposed to view is dependent
upon the age of the wearer and the purpose for which the garment
is worn. This interpretation would follow some of the previously
cited definitions for tights which describe them as knitted pants
and stockings in one piece or underpants and stockings knit in
one piece.
In United States v. Great Pacific Co., Shui Tai & Co., 23
CCPA 319, 324, T.D. 48192, the court stated:
A common meaning, having been once established and
determined by a court, will be presumed to continue until
the language is changed by subsequent legislation.
However, the tariff schedules in force at the time of Children's
Hose did not have a provision for tights as the current tariff
does, nor did it have a provision for trousers. Therefore, while
the determination of the court regarding the meaning of the term
tights and the manner in which they are designed to be worn is
instructive in this case, it is not determinative because the
term tights was not part of the statutory language of the tariff
at the time of Children's Hose. The meaning of an eo nomine
classification is determined as of the time of the enactment of
the tariff provision. FAG Bearings, Ltd. v. United States, 9 CIT
227, 228 (1985) In this case, the HTSUSA (of which heading 6115
which provides for tights is part) was enacted as part of the
Omnibus Trade and Competitiveness Act of 1988, P.L. 100-418,
Title I, sec. 1201, 102 Stat. 1147 (1988), and became effective
on January 1, 1989. Nonetheless, Customs does not believe the
common meaning of the term tights changed much between 1965 and
1989.
You have argued that the merchandise is essentially within
the common meaning of tights because it is body-conforming,
covers the lower torso, and is designed for use during exercise.
While the definitions of tights indicate their use by athletes
and performers, they also indicate that tights are garments for
general wear by women and girls. The court in Children's Hose,
at 8, recognized that tights are worn for warmth and fashion.
In deciding if the subject garments are within the eo nomine
classification for tights, Customs may consider the use of the
merchandise. United States v. Quon Quon Co., 46 CCPA 70, 73,
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C.A.D. 699 (1959). Customs interprets the use of the
merchandise to include the manner in which it is worn as well as
the reasons for which it is worn.
Included as part of your submission is a letter from the
Vice-President in charge of design for Regaliti Inc., Mr. Robert
Fink. In his letter, Mr. Fink states that the styles at issue
herein, along with a number of other Regaliti styles, were
designed for use during exercise and for that reason should be
considered tights. Customs rejects the criteria of athletic use
to identify a garment as tights because, as noted above, tights
are worn for reasons beyond athletic use. Sweat pants are
designed for use during exercise, but that does not make them any
less pants. Therefore, Customs will look to the manner in which
they are worn.
You have submitted that if worn outside the athletic area,
the garments at issue are principally worn with another garment
which conceals the lower torso. Customs recognizes that the
garments at issue herein belong to a class of garments known
commercially as leggings which are usually worn with another
garment, such as an oversized shirt or sweater, which covers the
lower torso. However, these garments are generally worn in
conjunction with a garment which just barely covers the lower
torso, i.e., reaches just below the hip area. Consequently, the
portion of the leggings which covers the lower torso is exposed
to view as the wearer reaches or bends or moves about in the
course of normal activity. Additionally, these garments are not
always worn with a garment which covers the lower torso. They
may be worn without such a garment according to the discretion
of the wearer. Customs believes the donning of another garment
to cover the lower torso when wearing leggings such as the
garments at issue is a function of fashion and the personal
perception of the individual regarding her own body image and how
best to flatter it. It is not a matter of necessity as it would
be in the case of tights. As the court noted in Children's Hose,
tights consist of a portion which is not intended to be exposed,
which is partially underwear. Customs believes the same cannot
be said of the subject garments. They are not partially
underwear. They may be worn as street wear without a garment to
cover the lower torso if the wearer so chooses. Tights, on the
other hand, if worn as street wear, must be worn with another
garment covering the lower torso.
You have submitted some of your client's advertising
material and copies of purchase orders which identify these
garments as tights. While Customs will always consider such
material, it must also recognize that such material may be self-
serving. We have examined advertising material for leggings
similar in appearance to your client's garments. It is
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interesting to find that in the Fall & Winter 1990 J.C. Penney
Catalog, garments which are similar in appearance to those at
issue are identified in the catalog as pants. They are
identified as ankle-length pants, capri pants or simply pants.
In one instance, a garment is identified as leggings in the
descriptive material, yet identified as pants in a photograph of
the garment. Leggings of the type at issue herein are often
advertised either before, after, or alongside advertisements for
tights. But, they are not advertised as tights or to be worn
necessarily in the same manner as tights. Additionally, these
garments are not displayed in the manner of tights, folded and
packaged, but in the manner of trousers, individually hung on
hangers. These garments are separately identified by the fashion
industry and the retail industry and this is evident by available
advertising material and the manner in which the garments are
displayed in stores.
Customs contacted store buyers regarding leggings and
tights. Two of these buyers were cooperative in answering
questions regarding leggings and tights. Of course, the
information provided was based on their personal opinions,
however, we believe it to be informative considering their
positions. Based on those conversations, Customs learned of the
difference in the display of leggings from tights. Each buyer
viewed tights and leggings as different articles. One buyer
stated that leggings are sold in every department of the store;
they are not limited to simply one area. This same buyer
indicated that tights and leggings are worn differently.
Leggings may be worn with an oversized sweater, but tights would
not be so worn. The other buyer indicated she would not view
leggings as pants or tights and that leggings are usually of a
heavier fabric than tights. Customs views this information as
supportive that tights and leggings, at least the ones at issue
herein, are distinct articles and thus, differently classified.
Finally, you have claimed that based on the design,
construction and intended function of your client's leggings,
they should be classified as tights. Customs agrees with the
court's statement in Hampco Apparel, Inc. v. United States, 12
CIT 92, 96 (1988), that "a fugitive use or uses does not take [a
garment] out of the classification of its original and primary
use." We simply disagree in this instance regarding the primary
use of the garments at issue. While they may indeed be utilized
by some for exercise or athletic activity, Customs is of the view
that the garments will primarily be worn as street wear and any
athletic use will be a fugitive use.
Having examined various classification arguments which have
been presented regarding this merchandise, we return to the
garments themselves, for it is the garments on which the
classification decision is based. As stated earlier, Customs
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does not regard these garments as hosiery. On the contrary,
these garments fall within an emerging class of merchandise known
commercially as leggings and worn, in Customs view, principally
as trousers by women and girls. Customs decision that the
garments at issue herein are not a form of hosiery, but are
trousers, is based upon, not only the manner in which the
garments are worn, but also the overall appearance of the
garments and the cotton/spandex knit fabric from which the
garments are made. Customs believes the fabric utilized in
manufacturing these garments is not fabric of the kind typically
used in the manufacture of hosiery articles. Instead, it is not
unlike cotton/spandex blend knit fabrics commonly used today to
make form-fitting dresses, skirts and tops.
Having determined that the garments at issue herein are of a
class of garments worn as trousers and commercially known as
leggings, it is necessary to express caution in interpreting
this ruling. The term leggings is being used liberally by the
fashion industry to identify a range of garments which have in
common the characteristic of being form-fitting. As with any
range, there are extremes. Customs is of the view that that is
true of leggings. There are garments currently identified as
leggings which may be classifiable as tights depending on the
nature of the garments and whether they fall within the meaning
of tights as expressed by the court in Children's Hose.
The garments at issue herein are not of the fringe. They
are within what Customs perceives to be in the main stream. They
are among the majority of garments identified as leggings. These
garments are worn in the manner of trousers, not tights. In
addition, they are constructed of fabric not normally associated
with hosiery articles such as tights, but of fabric in common use
in today's ready-to-wear garments. Therefore, the subject
garments, styles 4892G, 4812G, 4813, 4811, 4835, and 4999, are
classifiable as women's trousers or shorts of heading 6104,
HTSUSA.
HOLDING:
NYRL 854333 of August 7, 1990, issued to your client,
Regaliti, Inc., was in error. Pursuant to 19 CFR 177.9(d)(1),
that ruling is hereby revoked. The garments classified therein,
styles 4892G and 4812G, are classifiable as women's trousers of
heading 6104.62.2010, HTSUSA. Garments classified in this
heading are subject to duty at a rate of 16.7 percent ad valorem
and fall within textile category 348.
In your February 19, 1991, supplemental submission, you
presented Customs with a copy of a ruling issued to your
client's manufacturer from the Hong Kong Trade Department. The
ruling classified several samples of leggings in category 359,
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including the two styles classified by Customs in NJRL 857485 as
trousers. The ruling points out that the classification advice
given therein is not binding on the importing country which may
apply different classification criteria. While this ruling is of
interest to Customs in that it serves to illustrate the existence
of discord and confusion on the classification of these garments,
as pointed out by the Hong Kong Trade Department in their ruling,
it is not binding on the U.S. Customs Service.
The Hong Kong Trade Department ruling classified the
garments by category. Customs does not classify by category.
Category designation is the responsibility of the Committee for
the Implementation of Textile Agreements (CITA). On September
10, 1991, in an effort to clarify the scope of categories
359/659 with regard to tights contained therein, CITA issued a
directive to the Commissioner of Customs to amend the definition
of tights contained in the Guidelines for the Reporting of
Imported Products in Various Textile and Apparel Categories, CIE
13/88. This directive appeared in the September 16, 1991, issue
of the Federal Register. Pursuant to the directive from CITA,
Customs will apply the new guideline regarding tights to
determine the proper textile category for goods exported to the
United States on or after January 1, 1992.
Due to the apparent confusion regarding the classification
of your client's garments as evidenced by the conflicting rulings
which were issued, Customs will delay the effective date of this
ruling until January 1, 1992, with respect to the revocation of
NYRL 854333 of August 7, 1990. This action is taken pursuant 19
CFR 177.9(3)(1). In addition, with the agreement of the
Commerce Department and in accordance with the September 10,
1991, directive from CITA, Customs will accept category 359
visas for shipments of styles 4892G and 4812G for which your
client has already contracted and which are shipped to the United
States prior to January 1, 1992.
As to your request for detrimental reliance in regard to
rulings BORL 857484 and NJRL 857485 issued to your client in
November 1990, Customs will issue its response in a separate
letter.
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
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.
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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
Commercial Rulings Division