HQ 087527: 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 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
FlotationCoveralls 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