HQ 087156: Mustang Floater garments. Essential character; plastic;textile; lining; outer shell

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 087156

                        October 21, 1992

CLA-2 CO:R:C:T  087156 HP

CATEGORY:  Classification

TARIFF NO.:   3926.20.5050

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 Ocean Class~
Vest, produced in Canada.  Please reference your client Mustang
Industries.

FACTS:

     The merchandise at issue consists of an "ocean class~ vest,"
model MV-3700, and is described in the Mustang catalog on page 11
as follows:

          Constructed with soft Airex~ closed cell
          flotation foam, the MV3700 combines
          exceptional comfort and superior buoyancy to
          produce a truly advanced Floater~ Vest
          design.  Utilizing a waterproof Labrador
          outershell [sic.] fabric and a smooth inner
          lining, the MV3700 boasts several unique
          features that include a retractable rescue
          harness, fleece lined hand warmer pockets, a
          two slider front torso zipper, low cut arm
          holes and side snaps at the waist for
          expansion in the hip area.  The MV3700 Vest
          can also be equiped with the optional MA7030
          Hood.  A channelized waist belt with a quick
          release buckle, a snapped secured storm flap
          over the front torso zipper, a front "D" ring
          accessory tab, SOLAS reflective tape on the
          chest, a strobe light holder on the right
          shoulder and a zipper secured left front
          storage pocket all enhance the superior
          performance of this product.

    The vest has been made using a multi-layer process, consisting 
of an outer shell of polyurethane-coated nylon, and a ~" thick 
middle core of Airex~ or Ensolite~ PVC foam sewn to an inner 
lining of nylon.  You state that the polyurethane 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 vest is water resistant.  The vest has a U.S. Coast Guard 
Type III buoyancy rating.

     Under the Tariff Schedules of the United States (TSUS), the
vest was classified under Item Number 389.6270, as man-made
articles nspf.  You argue that under the current tariff, the
merchandise should be classified as wearing apparel of plastics.

ISSUE:

     Whether the MV-3700 is an article of Section XI, HTSUSA?

LAW AND ANALYSIS:

     Chapter 62, HTSUSA, provides for wearing apparel 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 vest's 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.  That rationale fails, however, when extended to the
instant merchandise.  It is the flotation capabilities which make
this ocean cruiser vest what it is: a more fashionable, garment-
like alternative to conventional side-laced life jackets. 
Accordingly, the MV-3700 is classifiable according to the
material of the flotation-imparting inner core.

HOLDING:

     As a result of the foregoing, the instant merchandise is
classified under subheading 3926.20.5050, HTSUSA, as plastic
apparel other than gloves and aprons.  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 percent ad valorem; otherwise, the general rate
of duty is 5 percent ad valorem.

     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