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HQ 086504


December 27, 1990

CLA-2 CO:R:C:G 086504 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6201.93.3510; 6202.93.4500; 6210.40.1020; 6210.50.1020

Mr. T. Randolph Ferguson
GLAD & FERGUSON
Attorneys at Law
625 Market Street
Thirteenth Floor
San Francisco, CA 94105

RE: NYRLs 847328 847319 847327 affirmed. Floater coats with filler of expanded PVC have essential character imparted by shell. Gore-Tex; Thintech; nonwoven; anorak

Dear Mr. Ferguson:

This is in reply to your letter of January 30, 1990, requesting reconsideration of several New York Ruling Letters, with respect to the classification of floater coats, produced in Canada. Please reference your client Mustang.

FACTS:

The merchandise at issue consists of various styles of floater coats, as described in the applicable NYRLs.

I. NYRL 847328 of January 11, 1990

A. Style MC1600

1. A women's coat with an outer shell of woven nylon fabric, visibly coated on its inner surface with a polyurethane-type plastic. The inner lining is also nylon, and the sample has a core of PVC foam. The coat has a full front opening with a two-way zipper covered by a storm flap, a fleece-lined collar with a D-Ring tab closure, a hood with a drawstring concealed within the collar, storm cuffs at the wrists, double entry fleece-lined pockets at the waist, a single covered chest pocket, partial side vents with zippered closures, and a tunneled belt at the waist. The garment reaches to approximately mid- thigh.

2. In NYRL 847328, we classified this garment under subheading 6210.50.1020, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as women's or girls' anoraks and similar articles made up of fabrics of heading 5903.

B. Style MC1700

1. A men's coat with an outer shell of woven nylon fabric, visibly coated on its inner surface with a polyurethane-type plastic. The inner lining is also nylon, and the sample has a core of PVC foam. The coat has a full-front two-way zipper with a storm flap, a detachable fleece-lined hood, reflective strips on the chest, hooded back, flap-covered pockets at the waist and on the left sleeve, a zippered pocket on the left chest, a tunneled belt at the waist, hidden knit storm cuffs on the sleeves and a hidden beaver tail which, when folded down, extends from the back of the garment, under the crotch, and attaches to hooks or snaps on the garment's front for additional warmth. The garment reaches approximately mid-thigh.

2. In NYRL 847328, we classified this garment under subheading 6210.40.1020, HTSUSA, as men's or boys' anoraks and similar articles made up of fabrics of heading 5903.

II. NYRL 847319 of January 9, 1990.

A. Style MC1402

1. A women's coat with an outer shell and lining of woven nylon fabric, and a center layer of expanded PVC. The garment is slightly longer than hip length, has a full front opening with a two-way zipper, and hidden knit storm cuffs. The outer shell is visibly coated with plastics. The garment has a fleece-lined collar, slant zippered pockets at the waist, a zippered pocket on the left chest, a covered pocket on the left sleeve, and a hood concealed within a zippered compartment in the collar. It also features a beaver tail, described above.

2. In NYRL 847319, we classified this garment under subheading 6210.50.1020, HTSUSA, as women's or girls' anoraks and similar articles made up of fabrics of heading 5903.

B. Style MC1520

1. A men's coat with an outer shell and lining of woven nylon fabric, and a center layer of expanded PVC. The garment is slightly longer than hip length, has a full front opening with a two-way zipper, and hidden knit storm cuffs. The outer shell is visibly coated with plastics. The garment has a storm front over the front zipper, a fleece-lined collar with a tab, a hood concealed within a zippered compartment within the collar, zippered pockets below the waist, and a tunneled belt at the waist.

2. In NYRL 847319, we classified this garment under subheading 6210.40.1020, HTSUSA, as men's or boys' anoraks and similar articles made up of fabrics of heading 5903.

C. Style MC1530

1. A men's coat, similar to Style MC1520, supra, with the addition of a beaver tail.

2. In NYRL 847319, we classified this garment under subheading 6210.40.1020, HTSUSA, as men's or boys' anoraks and similar articles made up of fabrics of heading 5903.

D. Style MC1550

1. A men's coat with an outer shell and lining of woven nylon fabric, and a center layer of expanded PVC. The garment is slightly longer than hip length, has a full front opening with a two-way zipper, and hidden knit storm cuffs. The outer shell is not visibly coated with plastics. The garment is in a pea coat design, double breasted, with slant pockets at the waist, a zippered inner chest pocket, and an inner waist belt.

2. In NYRL 847319, we classified this garment under subheading 6201.93.3510, HTSUSA, as other men's anoraks and similar articles of man-made fibers.

E. Style MC1510

1. A men's coat with an outer shell and lining of woven nylon fabric, and a center layer of expanded PVC. The garment is slightly longer than hip length, has a full front opening with a two-way zipper, and hidden knit storm cuffs. The outer shell is not visibly coated with plastics. The garment is a Law Enforcement Service Coat, with slant, zippered pockets at the waist, chest pockets with flaps, side vents with partial zippered openings, epaulets, and a hood concealed within a zippered compartment in the collar.

2. In NYRL 847319, we classified this garment under subheading 6201.93.3510, HTSUSA, as other men's anoraks and similar articles of man-made fibers.

III. NYRL 847327 of January 10, 1990

A. Style MC1101

1. A men's coat slightly longer than hip length, with an camouflage-patterned outer shell of 65% polyester / 35% nylon, not considered coated with plastics, a nylon lining, a center layer of expanded PVC, a full front opening with a two-way zipper, zippered slant pockets in the front, expandable cargo pockets below the waist, a rolled-up hood concealed in a zippered compartment within the corduroy collar, and inner knit cuffs.

2. In NYRL 847327, we classified this garment under subheading 6201.93.3510, HTSUSA, as other men's anoraks and similar articles of man-made fibers.

B. Style MC1400

1. A men's coat slightly longer than hip length, a woven nylon outer shell considered visibly coated with plastics, a nylon lining, a center layer of expanded PVC, a full front opening with a two-way zipper, zippered slant pockets in the front, a rolled-up hood concealed in a zippered compartment within the corduroy collar, inner knit cuffs, a zip-through, fleece-lined, collar, and a beaver tail.

2. In NYRL 847327, we classified this garment under subheading 6210.40.1020, HTSUSA, as men's or boys' anoraks and similar articles made up of fabrics of heading 5903.

C. Style MC1400T

1. A men's coat similar to Style MC1400, supra, with the addition of reflective strips on the shell.

2. In NYRL 847327, we classified this garment under subheading 6210.40.1020, HTSUSA, as men's or boys' anoraks and similar articles made up of fabrics of heading 5903.

D. Style MC1100

1. A men's coat slightly longer than hip length, a woven nylon outer shell considered visibly coated with plastics, a nylon lining, a center layer of expanded PVC, a full front opening with a two-way zipper, zippered slant pockets in the front, a rolled-up hood concealed in a zippered compartment within the collar, and inner knit cuffs.

2. In NYRL 847327, we classified this garment under subheading 6210.40.1020, HTSUSA, as men's or boys' anoraks and similar articles made up of fabrics of heading 5903.

E. Style MC1102

1. A women's coat slightly longer than hip length, a woven nylon outer shell not considered visibly coated with plastics, a nylon lining, a center layer of expanded PVC, a full front opening with a two-way zipper, zippered slant pockets in the front, a rolled-up hood concealed in a zippered compartment within the collar, and inner knit cuffs.

2. In NYRL 847327, we classified this garment under subheading 6202.93.4500, HTSUSA, as women's or girls' water resistant anoraks and similar articles.

ISSUE:

Whether the center of expanded PVC imparts the essential character of the instant garments?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part:

... 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.

The instant garments are constructed of more than one material. In HRL 080817 of August 31, 1987, we stated:

It is our understanding that apparel was intended to be classified under the [HTSUSA] usually according to its outer shell.

Accordingly, the goods of Chapters 61 and 62 with relatively unimportant linings, shoulder pads, pockets, etc., should 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 the outer shells and other significant portions must be considered in determining the proper classification of those goods. In this situation, we believe it is appropriate to utilize Subheading Note 2(B)(a) of Section [XI].

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 general 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 5809 or 5902 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 each other textile material.

In applying the Section Note, we have stated that:

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. The garment[s] in question [are] made of [several] fabrics. If those fabrics were imported together in fabric form, Section XI Note 2(A) would not require that the weights of their components be compared and that classification be according to the textile material which predominates. Rather, they would be classifiable as separate fabrics. Therefore, where separate fabrics are combined to form a textile garment or article [as in the instant matter], GRI 3 is utilized first to select which fabric [(and which part of the garment that fabric comprises)] will determine classification.

HRL 084012 PR of June 12, 1989.

Accordingly, where the instant garments contain parts or accessories that materially contribute to their character or usefulness, those parts or accessories must be considered along with the outer shell in determining the applicable classification. Following Subheading Note 2(B)(a) to Section XI, GRI 3 is consulted to determine which portions of the garment are to be considered in applying Subheading Note 2(A).

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) 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) [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 material or component which gives them their essential character, insofar as this criterion is applicable.

Explanatory Note (X) to GRI 3 provides, in pertinent part:

[C]lassification is made according to the component, or components taken together, which can be regarded as conferring on the [good] 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 your opinion that, [b]ased upon the importance of the inner PVC foam filling [rather than the outer shell] in terms of the relative weight and value of the components and the function of the garments, ... the coats are classifiable ... as articles of plastics. We disagree.

As we noted above, HRL 081817 indicated that garments will generally be classified according to the material of their outer shell. A limited exception to this maxim is where the garments have parts or accessories which materially contribute to their character or usefulness, AND, where that part or accessory imparts the essential character. While it is clear that the PVC filling contributes to the usefulness of the floater coats, i.e., added features of flotation and insulation, it is our view that the shell more clearly conforms to the definition of indispensable to the structure or condition of the coats.

In HRL 081134 of April 27, 1990, garments with outer shells, linings or interlinings laminated to Gore-Tex were classified under heading 6210, HTSUSA, because:

In tariff terms, Gore-Tex is a laminated fabric, contemplated by the terms of Section XI and Chapter 62 to become part of a finished garment. In commercial terms, Gore-Tex is bought by consumers who seek garments with the dual abilities of shedding rain and wicking perspiration away from the body. Based upon these unique attributes, we believe that Gore-Tex is more than a mere trimming or lining, and that garments "made up" of Gore-Tex -laminated fabrics must be classified in heading 6210].

You contend that the above text provides strong authority for your position. This reliance is misplaced. We have consistently held that where garments were prima facie classifiable in heading 6210 and some other heading, they were classified in the former, not because the essential character was imparted by the Gore-Tex lamination, but because such a result was mandated by Note 5 to Chapter 62, HTSUSA. See HRL 084693 of September 8, 1989 and HRL 084678 of August 24, 1989 (holding that garments with interlining composed of Thintech plastics membrane laminated to nonwoven textile fabric; microporous barrier against outside moisture which allows transpiration of water vapor from body classified similarly to Gore-Tex garments). No analogous note exists for garments with plastic foam interlinings. We also note that while Gore-Tex garments command a substantial price premium in the retail market, as do the instant floater coats, the essential character has still been held to be imparted by the outer shell.

HOLDING:

As a result of the foregoing, the instant merchandise remains classified under the subheadings enumerated in the aforementioned New York Ruling Letters.

Sincerely,

JOHN DURANT, DIRECTOR
COMMERCIAL RULINGS DIVISION

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