CLA-2 CO:R:C:T 087157 HP
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.
FACTS:
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:
A. STANDARD FLOATER~ VESTS
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.
* * *
C. MUSTANG CRUISER~ VESTS
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.
ISSUE:
Whether the vests are of textiles or plastics under the
HTSUSA?
LAW AND ANALYSIS:
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
68.12.
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.
HOLDING:
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.
Sincerely,
John Durant, Director
Commercial Rulings Division