HQ 088454

October 11, 1991

CLA-2 CO:R:C:T 088454 CMR

CATEGORY: Classification

TARIFF NO.: 6104.62.2010

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