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HQ 950101


October 28, 1991

CLA-2 CO:R:C:T 950101 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6104.63.2010

Ms. Susan Fasano
Hecny Brokerage Services, Inc.
642 N. Cassady Avenue
Columbus, Ohio 43219

RE: Classification of "Leggings"; tights; trousers; 6104, HTSUSA

Dear Ms. Fasano:

This is in response to your letter of July 15, 1991, on behalf of your client, Daniel Caron, Ltd., requesting classification of "leggings" to be imported from Taiwan. Samples were submitted to Customs for examination and will be returned to you under separate cover.

FACTS:

The submitted samples consist of four pairs of trousers constructed from knit polyester, cotton and spandex. Styles 2071QPM and 2081QPM are ladies' 3 x 2 rib knit trousers with rolled waistbands, gusset crotches and consist of 58% polyester, 32% cotton and 10% spandex. Styles 2042QPM and 2052QPM are ladies' knit trousers with wide elastic waistbands, stirrup leg bottoms, gusset crotches and consist of 62% polyester, 33% cotton and 5% spandex.

ISSUE:

What is the proper classification of the submitted samples, commercially referred to as "leggings", under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, and if the headings do not otherwise require, the remaining GRI's may be applied in the order of their appearance.

Customs recognizes the fact that garments commercially referred to as "leggings" are a relatively new development in the fashion industry. See Headquarters Ruling Letter (HRL) 088454, dated October 11, 1991. It is apparent upon examination of the garments that two headings potentially provide for classification of these articles: heading 6115, HTSUSA, which provides for, inter alia, tights and heading 6104, HTSUSA, which provides for, in part, trousers, breeches and shorts.

While the garments at issue possess some of the characteristics often associated with tights, such as being relatively form-fitting, made from finely knit fabrics and having elasticized waists and gusseted crotches, the articles at issue nevertheless fail to qualify as tights. As set forth in HRL 088454, Customs acknowledges that tights belong to a class of garments which are worn with another garment, such as an oversized shirt or sweater, which covers the lower torso. In Children's Hose Inc., v. United States, 55 Cust. Ct. 6, C.D. 2547 (1965), the court established that:

[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 ... .

Accordingly, there has been judicial recognition of the fact that tights are meant to be worn with other garments designed to cover the lower torso. The subject merchandise, however, is designed in such a manner, with rolled waistbands and opaque fabrics, so as to render the wearing of another garment designed to cover the lower torso optional. Customs noted in HRL 088454 that an individual may wear an article such as the subject merchandise with or without a garment which covers the lower torso according to the discretion of the wearer. The wearing of a garment to cover the lower torso is not a necessity with the articles at issue and therefore the submitted samples are not classifiable as tights.

Heading 6104, HTSUSA, provides for, inter alia, trousers, breeches and shorts. The Explanatory Notes to heading 6404 define trousers as follows:

... 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 ... .

It is apparent that the articles at issue easily meet this definition. Moreover, it is Customs' view that the submitted samples are being primarily worn as trousers by women and girls, and not as tights. The fact that styles 2042QPM and 2052QPM have stirrup feet is inconclusive with regard to classification inasmuch as both trousers and tights may possess such features. Both the weight and opaqueness of the fabrics used and the overall appearance of the articles indicate that these garments are intended to be worn as trousers.

Customs emphasizes that it is necessary to exercise caution when interpreting rulings dealing with garments such as these. As was stated in HRL 088454, "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 ... 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."

HOLDING:

The submitted samples are classifiable under subheading 6104.63.2010, HTSUSA, which provides for, inter alia, women's trousers of synthetic fibers. The subject merchandise is dutiable at a rate of 30% ad valorem and the textile category is 648.

The designated textile and apparel category may be subdivided into parts. If so, 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 that 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 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, your client should contact its local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,


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