CLA-2 CO:R:C:T 089852 CMR
Brenda Jacobs, Esq.
Sharretts, Paley, Carter & Blauvelt
1707 L Street, N.W.
Washington, D.C. 10004
RE: Classification of women's knit garments for the lower torso
and legs; tights vs. trousers vs. other garments; 6115,
HTSUSA vs. 6104, HTSUSA, vs. 6114, HTSUSA
Dear Ms. Jacobs:
This ruling is in response to your firm's submission of June
6, 1991, on behalf of Krystal K. International Inc., requesting
the classification of various styles of women's knit garments for
the lower torso and legs. Subsequent submissions have also been
taken into account in reaching the decision herein. Samples of
the garments were received by this office.
FACTS:
Six samples were submitted to this office. The styles
received were CT010, CT011, CT012, CT048, CT090 and CT027B.
All of the garments are made of lightweight, somewhat sheer,
fine knit fabric consisting of 54 percent cotton, 35 percent
polyester and 11 percent spandex. Each garment has a cotton
lined diamond-shaped gusset in the crotch, a 3/4-inch elasticized
self-fabric waistband, inseams along each leg, and front and back
center seams on the torso portion of the garment. The garments
vary in length from above the knee to ankle-length and vary in
the finishing of the leg bottoms. Some styles have hemmed leg
bottoms and some are finished with two-inch lace.
The garments will be imported from Taiwan packaged in
individual plastic bags. You indicate they can be sold directly
to the consumer in the condition as imported and that the
garments are principally sold and marketed by Krystal K. and by
retail stores as tights. Additionally, you have cited NYRL
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816878 of January 29, 1986, issued to Danstop International Inc.,
the predecessor to Krystal K, in which garments fitting the
general description of the goods at issue were classified as
tights.
ISSUE:
Are the submitted sample garments classifiable as tights of
heading 6115, HTSUSA, or as trousers of heading 6104, HTSUSA, or
as other garments of heading 6114, HTSUSA?
LAW AND ANALYSIS:
Customs has received several submissions regarding the issue
involved in this case. In responding herein, we will attempt to
address the various arguments which you have presented and which
have been presented to us by others on the classification of
these garments and garments of the same class or kind.
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]."
In HRL 088454 of October 11, 1991, Customs ruled that
certain garments known as leggings are classifiable as pants and
not as tights. In that ruling care was taken to point out that
while Customs believes the majority of garments commercially
known as leggings are classifiable as pants, not all leggings
will necessarily be so classified. This caution was given due to
popularity of the term leggings and the liberal use of that term
in the fashion industry and by retailers in describing a wide
range of form-fitting knit garments for the lower torso and legs.
Customs examined the meaning of the term tights for tariff
purposes in great length in HRL 088454. In that ruling, Customs
concluded that tights are garments which are partially underwear
and partially outerwear, partially intended to be exposed and
partially intended to be covered. See, Children's Hose Inc., v.
United States, 55 Cust. Ct. 6, C.D. 2547 (1965). Customs also
determined, based on the various definitions which were reviewed,
the language of heading 6115, HTSUSA, and applying the doctrine
of "noscitur a sociis", that tights are a form of hosiery.
If tights are a form of hosiery, it becomes necessary to
determine if the goods at issue are commonly and commercially
recognized as hosiery. Customs has consulted lexicographic
sources and sought information from the hosiery industry
regarding the industry's definition of hosiery. Various sources
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define hosiery, in pertinent part, in the following ways:
1.a. Stockings and socks: HOSE. b. Chiefly Brit. Stockings,
socks, and underclothing. 2. The business of a hosier.
Webster's II New Riverside University Dictionary (1984)
1. A collective term for knitted or woven hose, especially
women's stockings. * * * 2. A term used in Great Britain
to indicate any knitted article. Fairchild's Dictionary of
Textiles (1970).
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)
Various sources define hose as:
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)
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)
The above definitions are helpful, but somewhat imprecise.
References to tights in the definitions do not clarify the issue
for Customs as the meaning of tights is also at issue.
Additionally, the definition above of hosiery as "a close-fitting
garment that covers the body from the waist to and sometimes
including the feet" could arguably describe certain types of
trousers. (See trousers definitions below).
In your submission regarding the issue of the meaning of
"hosiery", you state a belief that the term is rather broad,
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encompassing a wide variety of products. Customs agrees the term
encompasses many products and believes these products to have a
common characteristic. In an effort to determine the common
characteristic(s) of articles regarded as hosiery, Customs turned
to the hosiery industry for clarification regarding the
commercial understanding of the term "hosiery." 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).
However, whenever the common meaning is somewhat indefinite, "it
is proper to consider the interpretation commonly placed upon it
in the particular industry involved." United States V. Colonial
Commerce Co., Ltd., et al., 44 CCPA 18, C.A.D. 629 (1956).
The information Customs has received from sources in the
hosiery industry, such as the National Association of Hosiery
Manufacturers (NAHM), indicates that the industry views
manufactured, as opposed to hand knit, hosiery as articles
produced on hosiery machines. These machines are circular
knitting machines with small diameter heads. They produce
seamless, tubular fabric which is finished to make stockings,
pantyhose, tights, socks, etc. You have submitted information on
the manufacturing process of these garments and it indicates they
are made from fabric which is produced on circular knitting
machines. However, these knitting machines are different from
those utilized by the hosiery industry. They have large diameter
heads and produce tubular fabric which then must be cut and sewn
to produce an article. While it is true that full-fashioned
hosiery is produced by a cut-and-sew method, according to the
NAHM this form of hosiery has all but disappeared from the
market. In fact, the NAHM stopped gathering statistical data on
full-fashioned hosiery twenty years ago (1972) because it made
up such an insignificant portion of the market, i.e., less than
five percent. Garments such as those at issue herein, i.e.,
garments which are clearly produced from a cut-and-sew process,
are not viewed by the NAHM as articles of the hosiery industry,
but as articles of the apparel industry.
In deciding if the goods at issue are hosiery, Customs has
looked at not only the means of manufacture and the perspective
of the hosiery industry, but also the marketing of these goods.
These garments are generally found near the hosiery section in
department stores or sometimes as part of a subsection within the
hosiery section, but always as a distinct section unto itself
identified as bodywear or activewear.
Based on the information culled from lexicographic sources
and the hosiery industry, in addition to marketing, Customs does
not view the goods at issue herein as hosiery. As heading 6115,
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HTSUSA, is limited by its terms to articles of hosiery, these
garments cannot be classified as tights of that heading.
Since these goods are not classifiable within heading 6115,
HTSUSA, Customs must determine if they are properly classified as
trousers or shorts (depending on the length) of heading 6104,
HTSUSA, or as other garments of heading 6114, HTSUSA.
In your submission of June 6, 1991, it is argued that the
garments at issue are sold to retail stores as body garments;
that they are imported in polybags (much like traditional
"underwear") and can be sold directly to the consumer in their
condition as imported. It is also pointed out that the garments
are of fine knit fabric, have a significant amount of spandex,
small elasticized waistbands and cotton-lined gussets which allow
wear without undergarments. It is argued that the physical
characteristics of these garments make them unsuitable for wear
outside the athletic arena unless the lower torso is covered.
Further, it is argued that these physical characteristics, in
conjunction with the manner in which the garments are packaged,
marketed and sold leads to a conclusion that the goods should be
classified as tights of heading 6115, HTSUSA. Having eliminated
that classification possibility, Customs will examine these
factors as a possible basis for classifying these garments as
other garments of 6114, HTSUSA, rather than as trousers of
heading 6104, HTSUSA.
Various sources define trousers as follows:
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.
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Formerly, very tight, similar to long hose. Mary Brooks
Picken, The Fashion Dictionary at 390 (1973)
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 two definitions above illustrate that
trousers may be close-fitting depending on the fashion.
Trousers are defined in the Explanatory Notes to the
Harmonized System 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.
It is clear from the foregoing that the goods at issue fall
within the general definition of trousers.
In deciding if the subject garments are within the eo nomine
classification for trousers, Customs may consider the use of the
merchandise. United States v. Quon Quon Co., 46 CCPA 70, 73,
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.
Customs acknowledges that in this case, the garments at
issue are designed and manufactured for exercise use. The
presence of the cotton-lined gusset (eliminating the need for
underwear) and the use of a high percentage of spandex in a
lightweight knit fabric support such a conclusion. However, we
reject the contention that because the garments are designed for
use during exercise, dance or other athletic activities that
somehow makes them "more than" or "other than" pants. Sweat
pants and sweat shirts are garments worn especially during
exercise, but that use does not make them "more than" or "other
than" pants or shirts. Garments such as jogging shorts with
liners for support, bike shorts with padding in the crotch and
sun dresses with bust support sewn in clearly possess features
which eliminate the need to wear certain traditional under-
garments. These features are not features which generally come
to mind when one considers the general class of "shorts" or
"dresses". However, the presence of such features is
insufficient to remove these garments from the general class to
which they belong, it simply identifies the garments as
particular types of shorts or dresses. Heading 6104, HTSUSA, is
not limited by the language of the heading and therefore
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includes all forms of women's knit pants or trousers. See,
Nootka Packing Co. et al. v. United States, 22 CCPA 464, T.D.
47464 (1935).
Customs has examined another Krystal K sample garment, style
CT-168, not submitted by you or your client, but featuring the
same fabric composition and the same styling features. The
difference between this sample and those submitted to Customs by
you on your client's behalf is that unlike the submitted samples
which were of dyed knit fabric, this sample was printed. The
samples are clearly of the same class or kind. While it could be
claimed that the submitted samples of dyed fabrics are somewhat
sheer when worn, depending on the judgement of the observer,
thus necessitating they be worn with a garment covering the lower
torso; the printed sample is not sheer and does not require the
covering of the lower torso. Yet, these garments are virtually
the same and thus, should be classified the same. Additionally,
the sheerness and hence modesty argument falls short when one
considers that other garments, for instance, white linen trousers
or certain women's blouses, may be considered somewhat sheer.
This factor simply requires the donning of appropriate
undergarments.
In Mast Industries v. United States, 9 CIT 549, 552 (1985),
aff'd, 786 F. 2d 1144 (1986), the court, in determining that the
garments at issue therein were nightwear, found that the
merchandise was designed, manufactured, marketed and used as
nightwear. In this case, Customs does not dispute that these
garments are designed, manufactured, marketed and used as
exercise wear. Customs does have problems accepting that the
garments are designed, manufactured, marketed and used as tights,
or that because the garments are used as exercise wear this
makes them classifiable as other than trousers. We believe the
garments have dual uses, i.e., in the gym or on the street. In
this case, the principal use of this merchandise, whether it is
for exercise or for fashion, does not affect its commercial
identity. To classify one garment as trousers because it is
principally worn for fashion and a virtually identical garment as
other than trousers because it is principally worn for exercise
would lead to inconsistent classification decisions on
essentially identical merchandise.
Customs believes that the marketing material which has been
reviewed supports our view that these garments, regardless of
use, are pants and considered such in the marketplace. Customs
has reviewed material submitted by you on your client's behalf
and advertisements placed in magazines, newspapers and catalogs,
which have been sent in from Customs various field offices.
In your submission, you included your client's Fall '91
catalog. The cover identifies the catalog as "Basic
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Activewear/Bodywear". Throughout the catalog, goods such as
those at issue are identified as leggings or tights. While
Customs will always consider such material, it must also
recognize that such material may be self-serving. Each of the
samples before us, except one, has a hang tag identifying the
garment as either sports wear or active wear. None of the
garments at issue has a tag or label identifying it as tights.
We have examined advertising material for garments much like
those at issue herein. We have not thus far found any
specifically for Krystal K's merchandise, but believe it is of
the same class or kind as similar merchandise marketed by Gilda
Marx, Marika, Danskin and Jacques Moret. Customs has found
several advertisements for garments by these companies in which
the goods are identified as bike shorts, capri pants, ankle-
length pants, knee pants and pedal pushers. These goods have
been identified as such in advertisements for such retailers as
J.C. Penney, Oshman's, Spiegel, and Sears. Advertisements for
local retailers have appeared in newspapers such as the L.A.
Times and the Washington Post identifying these goods in the same
manner. Therefore, while Customs considers your client's catalog
informative, particularly in regard to the design and
manufacture of these garments, we believe that there exists
sufficient evidence as to the marketing of garments of the same
class or kind at the consumer level to rebut any claim that
designation of the goods as tights in the submitted catalog
should be sufficient to support a classification of the goods as
tights of heading 6115, HTSUSA, or preclude classification as
pants of heading 6104, HTSUSA. Customs has collected and
continues collecting advertisements on goods of the same class or
kind as your client's in which the garments are identified as
some type of shorts or pants.
In regard to the packaging of the garments in polybags,
while these garments are imported in this condition and "can be
sold directly to the consumer in their condition as imported,"
you do not indicate if in fact the garments are sold to consumers
in this condition. Garments of the same class or kind are
displayed much in the manner of trousers, i.e., on hangers, in
department stores and specialty stores around the country.
Lastly, NYRL 816878 of January 29, 1986, cited by you as
support for classification of the subject goods as tights, dealt
with different merchandise. The two garments in that ruling
which have the same fiber composition and general description of
the goods at issue herein were made of different fabric. Those
garments were made of 2 X 2 rib knit fabric. Therefore, Customs
views this ruling as without weight in considering the matter at
hand.
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HOLDING:
General Rule of Interpretation 3(a) states that the heading
which provides the most specific description is favored over
headings providing a more general description. Based on GRI 3(a)
and not being satisfied that the subject garments are "more than"
or "other than" pants, the garments at issue are properly
classified in heading 6104, HTSUSA, as trousers or shorts
(depending on the length of the garment) and not as tights of
heading 6115, HTSUSA, or in the provision for other garments,
heading 6114, HTSUSA.
Styles CT027B, CT010, CT090, and CT011 are classifiable as
women's cotton knit pants in subheading 6104.62.2010, HTSUSA
textile category 348, dutiable at 16.7 percent ad valorem.
Styles CT012 and CT048 are classifiable as women's cotton knit
shorts in subheading 6104.62.2030, HTSUSA textile category 348,
dutiable at 16.7 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
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
Commercial Rulings Division