CLA-2 CO:R:C:T 089945 CMR
Mr. Khem Lall
R.H. Macy Corporate Buying
Eleven Penn Plaza
New York, New York 10001
RE: Classification of two women's knit garments for the lower
torso and legs; tights, 6115, v. trousers, 6104
Dear Mr. Khem:
This ruling is in response to your letter of June 20, 1991,
requesting the classification of two styles of garments which
will be manufactured in Taiwan. The garments will be entered
through the ports of San Francisco, New York, Los Angeles and
Philadelphia.
FACTS:
The garments at issue, styles 503 and 504, are described in
your letter as exercise tights. The garments are made of fine
knit fabric consisting of 54 percent cotton, 36 percent polyester
and 10 percent lycra fibers. The fabric weighs 320 grams per
yard. Both garments feature a gusset in the crotch, center seams
in the front and back lower torso portion of the garments, seams
along the inside of the legs and hemmed leg openings. Style 503
is ankle-length, has an 1/4-inch wide elasticized self-fabric
waistband and is hemmed in a manner which creates the appearance
of a fabric band at the bottom of each leg. Style 504 is calf-
length and has a one-inch wide elasticized self-fabric waistband.
You have requested classification of the garments as tights
of heading 6115, HTSUSA, with a 359 textile category designation.
ISSUE:
Are the garments at issue, styles 503 and 504, classifiable
as tights of heading 6115, HTSUSA, or as trousers of heading
6104, HTSUSA?
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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]."
You identify the submitted garments as tights, however, the
garments are similar to garments known commercially as leggings
and previously ruled upon by Customs. See, HRL 088454 of October
11, 1991. Leggings 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. The garments at issue
herein are not the leggings which are classifiable in heading
6406, HTSUSA. [For further discussion see, HRL 088454].
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).
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.
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 the tariff is silent regarding the meaning of
tights, it is reasonable and proper to look to lexicographic
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sources. The statutory canon of construction "noscitur a sociis"
is useful in determining the common and commercial meaning of the
term tights. Accordingly, 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)
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)
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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)
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)
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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,
represented by the submitted sample, 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 sample
garment is form-fitting and covers the lower torso and legs,
however, upon examination Customs believes it to be 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.
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
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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.
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,
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 recognizes that the garments at issue herein belong
to a class of garments known commercially as leggings. 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
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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.
Customs has examined advertising material for leggings
similar in appearance to the garments at issue herein. It is
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.
We now return to the garments themselves, for it is the
garments on which the classification decision is based. As
stated earlier, Customs does not regard the garments at issue
herein as hosiery. On the contrary, these garments fall within
an emerging class of merchandise known commercially as leggings
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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 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 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 the main stream. They
are part of the majority of garments identified as leggings and
worn in the manner of trousers, not tights. Therefore, the
subject garments are classifiable as women's trousers of heading
6104, HTSUSA.
HOLDING:
The garments at issue, styles 503 and 504, are classified 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 HRL 088454 of October 11, 1991, Customs Headquarters
ruled on a garment much like styles 503 and 504. That ruling
was the first Headquarters ruling on the classification of
garments known as leggings. Customs acknowledges that there has
been some confusion regarding the classification of these
garments. Much of the concern about the classification, however,
revolves around the category designation.
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
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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 leggings, Customs will delay the effective date of this ruling
until January 1, 1992. This action is taken pursuant to 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 continue to apply the current
category guideline for tights until the new guideline takes
effect on January 1, 1992.
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