HQ 953239: Classification of a men's alpinist climbing suit; garment constructed of a variety of fabrics; TD 91-78; Customs Memorandum 084118; classification as per GRI 3(b); subheading 6210.40.1040, HTSUSA.

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 953239

                          April 6, 1993

CLA-2  CO:R:C:T  953239  jb

CATEGORY:  Classification

TARIFF NO.:  6210.40.1040

William J. Maloney, Esq.
Rode & Qualey
295 Madison Avenue
New York, NY 10017

RE:  Classification of a men's alpinist climbing suit; garment
     constructed of a variety of fabrics; TD 91-78; Customs
     Memorandum 084118; classification as per GRI 3(b);
     subheading 6210.40.1040, HTSUSA.

Dear Mr. Maloney:

     This is in response to your letter of December 3, 1992, on
behalf of your client, Odyssey, USA, Inc., requesting
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), for a men's alpine climbing suit
constructed of different fabrics.  A sample was submitted for
examination and will be returned under separate cover.

FACTS:

     The submitted sample, referred to as a men's alpine climbing
suit, style number 3100, is a one-piece coverall designed for
wear during mountain climbing.  It has a front zipper opening
extending from the crotch to the top of the collar (which has an
elasticized drawstring), and which is partially covered by two
flaps with VELCRO closures. The garment has a tunnelled belt at
the waist, vertical opening zippered pockets above the waist, a
horizontal opening zippered pocket in the rear, and elasticized
storm cuffs at the ankles.  The legs have various two way zippers
to facilitate getting the garment on and off.

     The upper half of the garment is comprised, in part, of a
knitted, heavily napped, polyester fleece fabric, extending from
the shoulders to the mid-chest area, and also covering the
internal portion of the collar.  In addition, there is some woven
nylon fabric (covering a predominantly greater surface area),
comprising the external circumference of the collar and, the
outer portion of the pockets extending from mid-chest to the
waist.  The garment also features some mesh for ventilation under
both sleeves from the shoulder seams to the elbows.
     The lower half of the garment is constructed of a three-
layer Gore-Tex fabric, which consists of a plastic membrane
covered on the outer surface with a woven textile fabric and on
the inner surface with a knitted textile fabric, both of man-
made fibers.

     Data submitted comparing the Gore-Tex and non-Gore-Tex
components of the garment indicates the following information
regarding approximate surface area and cost per yard: 

     Gore-Tex:                        Non-Gore-Tex:

     - 52.8 percent                   - 47.2 percent 
     - $15.98 per yard                  - Nylon - $4.28 per yard
                                        - Fleece - $7.50 per yard

     Based on the data given, the figures suggest a value ratio
of approximately 74 percent for Gore-Tex and 26 percent for the
other fabrics. Though approximate weights of the different
fabrics were not provided, a preliminary examination by our New
York office indicates that the fleece weighs approximately 27
percent more than the Gore-Tex lamination per square foot.
Overall, this results in a 19 percent weight advantage for the
Gore-Tex over the fleece, based on the stated ratio of 52.8
percent of the surface for Gore-Tex and 34.6 percent for the
fleece.

ISSUE:

     Whether the subject garment is classifiable in heading 6210,
HTSUSA, as an article made up of fabrics of heading 5602, 5603,
5903, 5906 or 5907, or in heading 6211, HTSUSA, as men's or boys'
woven other garment or, in heading 6114, HTSUSA, as a men's or
boys' knit other garment?

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's).  GRI 1 requires
that classification be determined according to the terms of the
headings and any relative section or chapter notes, taken in
order.  Where goods cannot be classified solely on the basis of
GRI 1, the remaining GRI's will be applied, in the order of their
appearance.

     Subheading Note 2 to Section XI HTSUSA, provides in
pertinent part:





     (A) Products of Chapters 56 to 63 containing two or more    
         textile materials are to be regarded as consisting      
         wholly of that textile material which would be selected 
         under Note 2 to this Section for the classification of a 
         product of Chapters 50 to 55 consisting of the same     
         textile materials.

     (B) For the application of this rule:

         (a) Where appropriate, only the part which determines   
             the classification under Interpretative Rule 3 shall 
             be taken into account.

     Note 2(A), Section XI, to which Subheading Note 2(A) refers,
provides:

     Goods classifiable in Chapters 50 to 55 or in Heading 
     No. 58.09 or 59.02 and of a mixture of two or more textile
     materials are to be classified as if consisting wholly of
     that one textile material which predominates by weight over
     any other single textile material.

     Before the Subheading Note, which is predicated on the
Section Note, can be utilized, it must first be determined to
which of the fabrics comprising the article, the Section Note
(and therefore the Subheading Note) applies.

     As was determined in HQ 950990, dated July 29, 1992,
(regarding the classification of a reversible men's knitted
pullover), when a garment is constructed of more than one
material, any consideration of the headings that classify the
article must first be predicated on a determination of which
constituent material determines the classification of the
merchandise.  

     Usually apparel is classified under the HTSUSA according to
     its outer shell.  Accordingly, goods of chapter 61 with
     relatively unimportant linings, shoulder pads, pockets,
     etc., would be classified according to Subheading Note 2(A),
     Section XI, without considering those trimmings.  However,
     where those goods have parts or accessories that contribute
     materially to their character or usefulness (for example,
     heavy weight linings which provide a substantial degree of
     warmth to the wearer), then those parts or accessories must
     be considered along with the outer shell in determining the
     applicable classification.






     The classification of garments composed of different
materials was discussed at length in Customs Memorandum file
084118, dated April 13, 1989. Therein factors for determining the
essential character of garments were enumerated.  For full body
garments, those factors were as follows:

     In the case of full body garments, that component which
     comprises the visible upper portion will determine the
     classification; however, classification will be according to
     GRI 3(b) or 3(c), as appropriate, if the other component:

     (1) provides a significant visual effect (e.g., a           
         substantial amount of lace); or

     (2) is over 60 percent by weight of the garment; or

     (3) is valued at more than 2 times the primary component.

     Thus, the analysis involves a determination of whether any
one component from which the article is constructed, imparts the
essential character to the garment.

     The competing provisions for this article are: heading 6210,
HTSUSA, which provides for garments made up of fabrics of heading
No. 5602, 5603, 5903, 5906 or 5907; heading 6211, HTSUSA, which
provides for men's or boys' woven other garments; and heading
6214, HTSUSA, which provides for men's or boys' knit other
garments.

     Based on the figures submitted with the article, the Gore-
Tex portion is valued at more than two times the other
components.  As this is one of the requisite enumerated
conditions which must precede a GRI 3 analysis (as per Customs
Memo 084118, regarding the classification of garments composed of
different materials), we are directed to proceed to GRI 3(b) or
3(c), as is appropriate.

     The Explanatory Notes to the Harmonized Commodity
Description and Coding System, (EN), constitute the official
interpretation of the tariff at the international level. GRI 3(b)
provides:

     Mixtures, composite goods consisting of different materials
     or made up of different components, and goods put up in sets
     for retail sale, which cannot be classified by reference to
     3(a), shall be classified as if they consisted of the
     material or component which gives them their essential
     character, insofar as this criterion is applicable.




     Gore-Tex fabric is used in garments to protect against
inclement weather, specifically providing wind resistance,
waterproof protection, and to a degree, the transpiration of
perspiration in the form of water vapor.  The top portion of the
garment is made of non-Gore-Tex fabrics.  Specifically, it is
constructed from fleece which has no wind or water resistance
properties, but provides warmth to the wearer.  In addition, the
garment also features woven nylon and, mesh for the purpose of
venting perspiration.   
     
     Customs concluded in T.D. 91-78 that

     garments consisting of different fabrics should not be
     classified in Headings 6113 or 6210, HTSUS, unless one of
     the fabrics listed in those Headings is determined to impart
     the essential character to the garment in question. 

     This is consistent with existing policy that a fabric
imparts the essential character to a garment only when the fabric
"creates its identity".  See also, HQ 088720, dated June 25,
1991.

     In this case, only the lower half of the garment is made
from Gore-Tex lamination.  As a whole therefore, the garment will
not keep one dry or protect one from the wind.  On the other
hand, the Gore-Tex, having no insulating properties, will do
little to keep one warm other than give wind resistance.  This
garment is a composite good in the truest sense of the term--
each component performs a distinctly different function, which
when combined, form a product which is neither distinctly Gore-
Tex nor fleece.

     The EN to GRI 3(b) provide guidance in determining essential
character:

     (VIII) The factor which determines essential character will
            vary as between different kinds of goods.  It may,   
            for example, be determined by the nature of the      
            material or component, its bulk, quantity, weight, or 
            value, or by the role of a constituent material in   
            relation to the use of the goods.

     It cannot be said that the fleece upper portion (provided
for in heading 6114, HTSUSA), creates the "identity of the
garment", nor can it be said that the identity of the garment is
imparted by its woven components (provided for in heading 6211,
HTSUSA).  

 



     Based on the data submitted with the ruling request, the
Gore-Tex portion of the garment exceeds all other components
(fleece, woven and mesh), in value, quantity and, weight.  As
these factorss are explicitly mentioned as important
considerations to a GRI 3(b) determination, it is Customs'
position that this garment qualifies as a garment classifiable in
heading 6210, HTSUSA.  

HOLDING:

     The submitted sample, a men's alpinist climbing suit, style
number 3100, is classified in subheading 621O.40.1040, HTSUSA,
which provides for other men's or boys' coveralls, made up of
fabrics of headings 5602, 5603, 5903, 5906 or 5907.  The
applicable rate of duty is 7.6 percent ad valorem and the quota
category is 659.

     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, we suggest that your client check, close to the time of
shipment, the Status Report on Current Import Quotas (Restraint
Levels), and issuance of the U.S. Customs Service which is
updated weekly and is available at the 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 the
local Customs office prior to importing the merchandise to
determine the current status of any import restraints or
requirements.


                           Sincerely,




                           John Durant, Director
                           Commercial Rulings Division