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HQ 950797


March 31, 1992

CLA-2 CO:R:C:T 950797 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6104.62.2010; 6104.62.2030

Richard M. Wortman, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49th Street
New York, NY 10017

RE: Women's knit garments for lower torso and legs; tights, heading 6115, HTSUSA, vs. trousers, heading 6104, HTSUSA.

Dear Mr. Wortman:

This ruling is in response to your firm's submission of December 11, 1991, on behalf of your client, Scotch Maid, Inc., requesting the classification of various styles of women's knit garments for the lower torso and legs which will be imported from Taiwan. Samples of the garments were received by this office.

FACTS:

Two samples were submitted to this office. The styles received were 502401, 502301, 732113, 732347.

All of the garments are made of lightweight, fine knit fabric consisting of 55 percent cotton, 35 percent polyester and 10 percent spandex. Each garment features a lined gusset in the crotch, 4-way stretch fabric, and elasticized waist. The garments vary in length from ankle and capri to bike length and vary in the finishing of the leg bottoms. All have elasticized cuffs and some are trimmed with lace. It is claimed the garments were designed for use during exercise.

ISSUE:

Are the garments at issue, Styles 502401, 502301, 732113, and 732347, properly classifiable as tights of heading 6115, HTSUSA, or as trousers or shorts (depending on the garment length) of heading 6104, 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.

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). 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 GRI's 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. 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 caveat was given due to the 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.

In that ruling, Customs examined the meaning of the term tights for tariff purposes in great length and 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). Based on the various definitions which were reviewed, and applying the doctrine of "noscitur a sociis", Customs decided that tights are a form of hosiery.

If the tights are a form of hosiery, it becomes necessary to determine if the merchandise at issue are commonly and commercially recognized as hosiery. In an effort to properly define hosiery, Customs has consulted lexicographic sources and sought information from the hosiery industry. Various sources define hosiery, in pertinent part, as follows:

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 Encyclopedia Britannica Vol. 5, at 147 (1975) (found at beginning of discussion of hosiery)

Hose is defined 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

1. Stockings, or covering for lower leg and foot, usually knit or woven. Formerly not made to cover the foot. 2. 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 definitions of trousers below).

The term "hosiery" is a broad one and encompasses a wide variety of products with common characteristics. To obtain a determination of the common characteristics of articles regarded as hosiery, Customs consulted the hosiery industry for clarification regarding the commercial understanding of "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 which produce seamless, tubular fabric which is furnished to make stockings, pantyhose, tights, socks, etc. 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.

Based on the foregoing information, Customs does not view the merchandise at issue 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 the submitted samples are not classifiable within heading 6115, HTSUSA, the other heading which merits consideration is heading 6104, HTSUSA, which provides for trousers or shorts (depending on the length).

In HQ 089852, dated February 19, 1992, Customs ruled that various styles of women's knit garments for the lower torso and legs were classified as trousers and not tights. In that ruling particular emphasis was placed on the fact that, regardless that the garments were designed and marketed as exercise wear, this did not alter or change their classification as trousers.

Trousers is defined by various sources 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 the 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 my 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 and form hugging depending on the fashion.

The Explanatory Notes (EN) to the HTSUSA, while not legally binding, constitute the official interpretation at the international level. In the absence of clear and unambiguous statutory language to the contrary, it has been Customs practice to follow such terms when interpreting the HTSUSA.

Trousers are defined in the EN 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 merchandise at issue falls 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 both the manner as well as the reasons for which it is worn.

Customs acknowledges that in this case, the garments are designed and manufactured for exercise use. The presence of the lined gusset (to wick away moisture during exercise), 4-way stretch fabric designed to recover from stretching during athletic wear and the use of a high percentage of spandex in a lightweight knit fabric support such a conclusion.

As stressed in HQ 089852 regarding similar merchandise:

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 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 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 undergarments. 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 feature 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 also recognizes the fact that the garments are marketed through bodywear and exercise departments of major retailers. 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.

The submitted merchandise is marketed by utilizing hangtags which state, inter alia, "BODY FORCE BODYWEAR". Customs believes that such marketing material does not change the fact that, regardless of use, the garments are pants and are considered such in the marketplace.

We have examined advertising material for garments much like those at issue herein. For example, similar merchandise marketed by Marx, Marika, Danskin and Jacques Moret. Customs has found several advertisements for garments by these companies in which the merchandise is 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. Penny, 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 garments in the same manner.

Garments 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 or hangers. These garments are separately identified by the fashion industry and this is evident by available advertising material and the manner in which the garments are displayed in the stores.

As stated earlier, Customs does not regard these garments in the hosiery category of tights. On the contrary, these garments fall within an emerging class of merchandise known commercially as "leggings" and worn, in Customs view, principally as trousers (or shorts, depending on the length), by women and girls. This decision is based upon, not only the manner in which the garments are worn, but also the overall appearance of the garments and the manner in which they are displayed and advertised in department stores and specialty stores around the country.

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. 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.

HOLDING:

Styles 502401, 502301 and 732113 are classifiable as women's cotton knit pants in subheading 6104.62.2010, HTSUSA, textile category 348, dutiable at 16.7 percent ad valorem. Style 732347 is 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 negotiations and changes, to obtain the most current information available, we suggest 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 the 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 the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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