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HQ 087156

October 21, 1992

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


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.


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.


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


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

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.


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.


John Durant, Director
Commercial Rulings Division

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