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HQ 087157

October 21, 1992

CLA-2 CO:R:C:T 087157 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 Floater~ vests, produced in Canada. Please reference your client Mustang Industries.


The merchandise at issue consists of "floater~ vests or cruiser~ vests" model numbers MV-3112 (Paddler's Vest), MV-3114 (Paddler's Floater~ Vest), MV-3180 (Cruiser~ Vest), MV-3182 (Sportsman's Cruiser~ Vest), and MV-3184 (Cruiser~ Work Vest), and are generally described in the Mustang catalog on page 5 as follows:


Mustang's standard Floater~ Vest far exceeds the comfort, performance and mobility of obsolete lace up side units. Featuring low cut arm holes, multi-layered poly foam, which allows for rapid right and left movement without the vest shifting on the body, a
"living hinge" on each side, to permit freedom of bending to the right or left, shaped foam over the shoulders, to avoid discomfort in this area, and the employment of all brand name components to insure maximum durability, Mustang's Floater~ Vest series is truly unique among traditional life vest designs. Of the greatest impact on the performance of this product is Mustang's exclusive Tug-Tite~ adjustment system, which allows for rapid tightening of the vest to the body, even in the water. Unlike lace up units which are extremely difficult, if not impossible, to adjust in the water, Mustang Floater~ Vests can be closely tightened to the body in almost any emergency. This naturally helps to prevent vest ride up in the water and aids the stability of the victim during a water immersion emergency. We urge you to compare the in-water performance, comfort and mobility of this product against any standard flotation vest you are currently using or plan to purchase.


Mustang's Cruiser~ Vest series is designed not to look like a life vest at all, while still providing superior in-water flotation performance. Doubling as a stylish, warm, comfortable down look product, Mustang's
Cruiser~ Vest series features hand warmer pockets, a channelized waist belt with a quick release buckle, low cut arm holes, a smooth inner lining, a fleece lined collar, a side snap adjustment system for the hips and perimeter mesh net at the hem.

The vests have been made using a multi-layer process, consisting of outer shells of polyurethane-coated nylon, and a 1/2" to 1 1/2" 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 vests are water resistant. The vests have a U.S. Coast Guard Type III buoyancy rating.

Under the Tariff Schedules of the United States (TSUS), the vests were classified as follows:

Model No. TSUS Item No.
MV-3112, 3114, 3180 772.3195, as wearing apparel (including rainwear) not specially provided for, of rubber or plastics.

MV-3182, 3184 389.6270, as articles not specially provided for, of man-made fiber, other.

You now argue that under the current tariff schedule, all models should be classified as wearing apparel of plastics.


Whether the vests are of textiles or plastics under the 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 vests' 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 these vests what they are: more fashionable, garment-like alternative to conventional side-laced life jackets. In concluding this, we specifically take note of the promotional material quoted above. Accordingly, the vests are 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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