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HQ 087527


October 21, 1992

CLA-2 CO:R:C:T 087527 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6210.50.1040; 6211.43.0007

Mark K. Neville, Jr., Esq.
51 Marion Road
Westport, CT 06880

RE: Mustang Floater garments. Essential character; plastic; textile; lining; outer shell

Dear Mr. Neville:

This is in reply to your letter of May 3, 1990, and subsequent submissions through June 15, 1992. That letter concerned the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of Floater~ suits, produced in Canada. Please reference your client Mustang Industries.

FACTS:

The merchandise at issue consists of unisex "floater~ suits" (considered women's garments for tariff purposes), model numbers MS-2175, MS-2401, MS-2403, MS-2405, and MS-2700, and are generally described in the Mustang catalog on page 4 as follows:

Floater~ Suits are normally designed to be either wet suits, which are called anti- exposure coveralls, or dry suits, which are known as immersion/survival suits. In either instance, Mustang engineers its products to float the individual in a resting, horizontal position in the water. In our anti-exposure coveralls, this results from the fact that the middle lining of the suit is a full torso, one piece "wet suit" that provides overall personal buoyancy. As in the case of our Floater~ Coats, this also makes the
Mustang Anti-Exposure Coverall an excellent wind and rain resistant product. In consideration of the body's principal heat loss areas, Mustang Floater~ Suits are equipped with our standard inflatable head support element to help keep the head constantly out of the water. This device, which is orally inflatable for anti-exposure coveralls or CO squared inflatable for our IS-2 immersion/survival suit, adds approximately ten (10) pounds of buoyancy to the anti-exposure coverall or thirty (30) pounds to the IS-2. On the average, Mustang Anti-Exposure Coveralls will provide the wearer with approximately forty (40) pounds of buoyancy depending on the size. The IS-2 Suit will provide sixty (60) pounds of
buoynacy. Given ... the 15 1/2 pound minimum flotation standard established for USCG Type III products, you can see that the flotation provided by a Mustang suit is well above this level. In evaluating the anti-hypothermia protection afforded by
Mustang Coveralls, it should be noted that the portion of the body kept floating out of the water is not subjected to the same heat loss rate as the part of the body in the water. Subsequently, the extra buoyancy provided by a Mustang suit can significantly aid anti-hypothermia protection. * * *
[A]ll Mustang Anti-Exposure Coveralls are equipped with a number of standard features to include perimeter mesh net at the wrists and cuffs for drainability, a smooth inner lining, a one piece storm flap over the front zipper, a fully lined hood to protect the head, a double slider front torso zipper, calf to ankle leg zippers to ease movement in and out of the suit and recessed storm knit cuffs. Incidentally, proper use of the zippers, together with the wearing of minimum apparel under the suit, allows for excellent ventilation of the product in warmer climate employment.

The suits have been made using a multi-layer process, consisting of outer shells of polyurethane-coated nylon (with the exception of the MS-2401, a camouflage cruiser suit whose outer shell is an uncoated 65% polyester / 35% cotton blend), and a 1/2" thick middle core of Airex~ or Ensolite~ PVC foam sewn to an inner lining of nylon. You state that the PU coating is on the inside surface of the outer shell and that the outer shell has been treated with a water-repellant substance. You further state that the suits are water resistant. The suits have a U.S. Coast Guard Type V buoyancy rating.

Under the Tariff Schedules of the United States (TSUS), the suits were classified under TSUS Item No. 772.3195, as wearing apparel (including rainwear) not specially provided for, of rubber or plastics. You now argue that under the current tariff schedule, all models should be classified as wearing apparel of plastics.

ISSUE:

Whether the suits are of textiles or plastics under the HTSUSA?

LAW AND ANALYSIS:

Chapter 62, HTSUSA, provides for made up articles of nearly any textile fabric. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System (Harmonized System) constitute the official interpretation of the scope and content of the tariff at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. See Totes, Inc. v. United States, Slip Op. 92-153, 40 Cust. B. & Dec. 35 (C.I.T. Sept. 4, 1992). It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA. The EN to Chapter 62, at 848, states:

This Chapter covers men's, women's or children's articles of apparel, clothing accessories and parts of apparel or clothing accessories, made up of the fabrics ... of Chapters 50 to 56, 58 and 59. * * *

The classification of goods in this
Chapter is not affected by the presence of parts or accessories [(i.e., inner cores)] of, for example, ... plastics or metal.
Where, however, the presence of such materials constitutes more than mere trimming the articles are classified in accordance with the relative Chapter Notes ..., or failing that, according to the General
Interpretative Rules.

The Chapter also excludes:

(a) Articles of apparel and clothing accessories of heading 39.26, 42.03 or
68.12.

It is undisputed that the suits' inner core of PVC foam is more than mere trimming. While various legal notes address the classification of fabrics (and garments constructed thereof) impregnated, coated, covered or laminated with plastics (see, e.g., Note 3 to Chapter 59 and Note 5 to Chapter 62, HTSUSA), none address a textile/plastic/textile multi-layered garment. Following the EN to Chapter 62, therefore, we now must take into account the General Rules of Interpretation.

The General Rules of Interpretation (GRIs) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part, that such "classification shall be determined according to the terms of the headings and any relative section or chapter notes...." Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRIs, taken in order. GRI 3 states, in pertinent part:

When by application of Rule 2(b) [goods of more than one material or substance] or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(b) [C]omposite goods ... made up of different components ... which cannot be classified by reference to 3(a) [which requires that goods be classified, if possible, under the more specific of the competing provisions], shall be classified as if they consisted of the
... component which gives them their essential character, insofar as this criterion is applicable.

Explanatory Note (IX) to GRI 3 provides:

[C]lassification [of composite goods] is made according to the component, or components taken together, which can be regarded as conferring on the set as a whole its essential character.

The factors which determine essential character of an article will vary from case to case. It may be the nature of the materials or the components, its bulk, quantity, weight, value, or the role a material plays in relation to the use of the goods. In general, essential character has been construed to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure or condition of an article.

It is a well accepted maxim of Customs law that a garment will ordinarily be classified according to the material of its outer shell. See HRL 080817 of August 31, 1987 (relating "understanding that apparel [is] intended to be classified ... according to its outer shell"); Classification of Garments Composed in Part of Linings or Interlinings of Specialized Fabrics or Nonwoven Insulating Layers, 56 Fed. Reg. 46372, T.D. 91-79 (Sept. 12, 1991) (Gore-Tex~ Notice) ("it is usually the outer shell which imparts the essential character to the garment because the outer shell normally creates the garment).

In HRL 086504 of December 27, 1990, we classified Mustang's Floater~ Coats within Chapter 62, HTSUSA, holding that while the PVC filling "contributes to the usefulness of the floater~ coats, i.e., added features of flotation and insulation, ... the shell[, by forming the garment,] more clearly [is] indispensable to the structure or condition of the coats." In other words, the PVC filling merely added desirable features to the man-made fabric coat. In HRLs 087156 and 087157 of this date, however, we classified Mustang's Cruiser~ and Floater~ Vests, respectively, within Chapter 39, HTSUSA, holding that the rationale applied in HRL 086504 "fails, however, when extended to the [vests]. It is the flotation capabilities which make these vests what they are: more fashionable, garment-like alternative[s] to conventional side-laced life jackets." In deciding what makes these garments "what they are," therefore, we must look not only to the garments construction, but to the reasons the garments are purchased and the uses to which they are put.

After analyzing the Floater~ Suits' description in the Mustang catalog, and comparing their construction with that of the above-mentioned vests, it is our opinion that the rationale in HRL 086504 is controlling. See HRL 087526 of April 24, 1992 (MAC-5 & MAC-10 Aviation Anti-Exposure Coveralls classified as textile garments insulated for cold weather). We note that where flotation capability was dispositive in determining what component of the vests imparted their essential character, the suits are more akin to the Floater~ Coats in that floatation is not of utmost importance in their purchase and use. For example, the MS-2700 Ocean Class~ Suit is advertised as "[d]oubling as foul weather gear, the MS2700 is also a superior flotation/anti- hypothermia product." Emphasis added. See also Cabela's Fall 1988 catalog (a major hunting apparel mail order firm), in which Flotation Coveralls by Stearns is advertised as not only being able to "save your life in an emergency" (via its USCG Type V flotation, and anti-hypothermia, capabilities), but will "provide you with unparalleled warmth and dryness in everyday use." Emphasis added. Accordingly, classification within Chapter 62, HTSUSA, is appropriate.

As we stated above, the suits' outer shells are of polyurethane-coated (PU) nylon (with the exception of the MS- 2401, a camouflage cruiser suit whose outer shell is an uncoated 65% polyester / 35% cotton blend). Heading 6210, HTSUSA, provides for, inter alia, garments made up of fabrics of heading 5903. Heading 5903, HTSUSA, provides for classification of textile fabrics impregnated, coated, covered or laminated with plastics, other than tire cord covered by Heading 5902. Note 2 of Chapter 59, HTSUSA, provides, in pertinent part:

Heading No. 59.03 applies to:

(a) Textile fabrics, impregnated, coated, covered or laminated with plastics, ... other than:

(1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually Chapters 50 to
55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of colour; * * *

The wording of Note 2(a)(1) (~cannot be seen with the naked eye~) is a clear expression by the drafters of the Harmonized System that a significant, if not substantial, amount of material must be added to a fabric for it to be considered impregnated, coated, covered or laminated. The plastics material added to the fabric must be visibly indistinguishable from that fabric without the use of magnification. Any change in the ~feel~ of the material is not taken into account. In essence, the plastics coating must alter the visual characteristic of the fabric in order for the fabric to be considered coated with plastics.

Applying the statutory test to the submitted samples, using normally corrected vision in a well lighted room, the fabric of the outer shells of the suits is clearly visibly coated. The warp and weft design is almost completely obscured by the polyurethane coating; therefore, the four suits are classifiable in heading 6210, HTSUSA.

HOLDING:

As a result of the foregoing, the instant merchandise is classifiable as follows:

MS-2401

... under subheading 6211.43.0007, HTSUSA, textile category 659, as other women's or girls' garments of man-made fibers, coveralls insulated for cold weather protection. Articles which meet the definition of "goods originating in the territory of Canada" (see General Note 3(c)(vii)(B), HTSUSA) are subject to reduced rates of duty under the United States-Canada Free Trade Agreement Implementation Act of 1988. If the merchandise constitutes "goods originating in the territory of Canada," the applicable rate of duty is 10.2 percent ad valorem; otherwise, the general rate of duty is 17 percent ad valorem.

MS-2175, MS-2403, MS-2405, and MS-2700

... under subheading 6210.50.1040, HTSUSA, textile category 359, as other women's or girls' garments made up of fabric of heading 5903, of man-made fibers, overalls and coveralls. Articles which meet the definition of "goods originating in the territory of Canada" (see General Note 3(c)(vii)(B), HTSUSA) are subject to reduced rates of duty under the United States-Canada Free Trade Agreement Implementation Act of 1988. If the merchandise constitutes "goods originating in the territory of Canada," the applicable rate of duty is 3.9 percent ad valorem; otherwise, the general rate of duty is 6.6 percent ad valorem.

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 negotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an 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, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director
Commercial Rulings Division

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