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HQ 089852


February 19, 1992

CLA-2 CO:R:C:T 089852 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6104.62.2010, 6104.62.2030

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

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
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,
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,

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.

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
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

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.

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

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