CLA-2 OT:RR:CTF:TCM H032716 KSH
Ms. Melissa Fox
Barthco International, Inc.
The Navy Yard
5101 S. Broad Street
Philadelphia, PA. 19112-1404
RE: Request for reconsideration of NY N027039, dated May 21, 2008; women’s leggings.
Dear Ms. Fox:
This letter is in response to your request of May 30, 2008, on behalf of your client Leonard Feinberg, Inc., for reconsideration of New York Ruling Letter (NY) N027039, dated May 21, 2008, as it pertains to the classification of women’s legging-styled trousers under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise at issue is a pair of opaque women’s legging-styled trousers constructed from 92 percent nylon and 8 percent spandex knit fabric, identified as style 5496. The legging-styled trousers are form-fitting and feature a reinforced elasticized waistband, diamond-shape gusset in the crotch, exposed inner leg seams and hemmed leg openings which extend to just below the knee.
ISSUE:
Whether the legging-styled trousers are classified in heading 6104, HTSUS, as trousers or heading 6115, HTSUS, as tights.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.
The headings at issue are as follows:
6104 Women's or girls' suits, ensembles, jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted:
6115 Panty hose, tights, stockings, socks and other hosiery, including graduated compression hosiery (for example, stockings for varicose veins) and footwear without applied soles, knitted or crocheted:
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The EN to heading 6104, HTSUS, provides in relevant part, the following:
The provisions of the Explanatory Note to heading 61.03 apply mutatis mutandis to the articles of this heading.
The EN to heading 6103, HTSUS, provides in relevant part, the following:
(D) "Trousers" means 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.
The EN to heading 6115, HTSUS, provides in relevant part, the following:
This heading covers the following knitted or crocheted goods, without distinction between those for women or girls and those for men or boys:
(1) Panty hose and tights designed to cover the feet and legs (hose) and the lower part of the body up to the waist (panty), including those without feet.
* * * *
The heading excludes :
(d) Leggings and gaiters (including " mountain stockings " without feet) (heading 64.06).
Leggings of heading 6406, HTSUS, are not included in the terms of heading 6115, HTSUS, because they are heavier than hosiery and are specifically excluded by the EN to heading 6115, HTSUS. Accordingly, we turn to consideration of whether the legging-styled trousers are classifiable in heading 6104, HTSUS. Although the instant merchandise is not leggings of heading 6406, HTSUS, it similarly is heavier than hosiery. See Headquarters Ruling Letter (HQ) 088454, dated October 11, 1991.
In HQ 088454, the classification of garments known as leggings and the distinction between trousers and tights were discussed in great length. Various definitions of tights and trousers were examined. From the various definitions and applying the doctrine of "noscitur a sociis", CBP concluded that tights are a form of hosiery. In HQ 088454, CBP also studied the opinion of the Customs Court in Children's Hose Inc. v. United States, 55 Cust. Ct. 6, C.D. 2547 (1965), in which the court examined the meaning of the term tights. From the language of the court, CBP concluded that tights are garments which are partially underwear and partially outwear; they are intended to be partially concealed and partially exposed. Tights are garments which if worn in public must be worn with the lower torso portion of the garment, i.e., the underwear portion, covered.
The instant legging-styled trousers are constructed from fabric that is a relatively heavy weight opaque material that has the appearance of snug-fitting trousers. Based on a review of the garment, the legging-styled trousers do not appear to be designed to be partially underwear, that is, it is not designed with a torso portion that allows for wear of the legging-styled trousers without underwear. Although there is a gusset present in each garment, the gussets are not lined. Hence, it appears prudent to wear an undergarment when wearing the garments at issue. CBP believes that the legging-style trousers would be generally worn in conjunction with a garment which just barely covers the lower torso, i.e., reaches just below the hip area, at the discretion of the wearer. Consequently, the portion of the legging-styled trousers which covers the lower torso would be exposed to view as the wearer reaches or bends or moves about in the course of normal activity. The legging-styled trousers envelop each leg separately, cover the knees reaching down to the ankles and stop at the waist. As such, the legging-styled trousers meet the description of “trousers” set forth in the EN to heading 6104, HTSUS. For the aforementioned reasons, the legging-styled trousers are classified in heading 6104, HTSUS. Our decision is consistent with numerous rulings on substantially similar merchandise. (See HQ 950474, dated January 8, 1992; HQ 088454; HQ 089138, dated December 3, 1991; HQ 950991, dated April 8, 2002 and; HQ 950004, dated November 12, 1991.)
HOLDING:
Pursuant to GRI 1, the legging-styled trousers are classified in heading 6104. They are provided for in subheading 6104.63.20, HTSUS, which provides for Women's or girls' suits, ensembles, jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Trousers: Of synthetic fibers: Other: Other: Women’s: Containing 5 percent or more by weight of elastomeric yarn or rubber thread.” The general, column one rate of duty is 28.2% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N027039, dated May 21, 2008, is hereby affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division