CLA-2 CO:R:C:T 088539 PR
District Director of Customs
300 South Ferry Street
Terminal Island
San Pedro, California 90731
RE: Request for Further Review of Protest 2704-89-003732,
Dated November 12, 1989, Concerning the Classification
of a Golf Glove
Dear Sir:
This ruling is on the protest that was filed against your
decision in the liquidation on August 25, 1989, of Entry No. 110-0497005-6, dated May 17, 1989
FACTS:
The submitted sample is a five fingered glove designed to be
worn on the left hand. It is described as a "Janec" golf glove
although it is not explained whether the word "Janec" refers to
a brand, a style, or the material from which it is made. It
appears to consist primarily of an imitation suede material that
is made from a knit man-made fiber fabric which has been covered
on its exterior surface with a thin layer of nontransparent
cellular polyurethane plastics material. It has fourchettes, a
Velcro closure at the back, a snap-in ball marker, perforations
on the backs of the fingers, an overlaid leather palm patch, and
a leather insert in the inside portion of the thumb. The wrist
area is gathered because a thin elastic band is stitched to the
inside of the glove.
ISSUE:
Where an imported glove consists of a knit textile fabric to
which plastics has been applied on its exterior surface to
simulate suede leather, is that glove classifiable under a
heading in Chapter 39 for other articles of plastics, or under a
heading in Chapter 61 which provides for knit gloves.
LAW AND ANALYSIS:
Imported goods are classifiable according to the General
Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule
of the United States (HTSUSA). GRI 1 provides that for legal
purposes, classification shall be determined according to the
terms of the headings in the tariff and according to any
pertinent section or chapter notes. GRI 2(a) is not applicable
in this situation. GRI 2(b) provides that a reference to a
material in a heading shall be taken to include mixtures or
combinations of that material with other materials and that any
reference to goods of a given material shall be taken to include
goods partly of that material; if goods consist of more than one
material, then classification will be according to GRI 3. GRI
3(a) requires that where two or more headings describe the
merchandise, the more specific will prevail; but if two or more
headings each refer to part only of the materials in the goods,
then classification will be by GRI 3(b). GRI 3(b) states that
the material or component which imparts the essential character
to the goods will determine their classification. In the event
that the applicable headings are equally specific, or that no
material or component imparts the essential character, then the
goods are classifiable according to GRI 3(c) under the provision
which occurs last in numerical order among those provisions being
considered.
Here, the merchandise was classified under a provision for
knitted gloves, impregnated, coated or covered with plastics,
with fourchettes, in subheading 6116.10.45, Harmonized Tariff
Schedule of the United States (HTSUS), with duty, as a product of
Korea, at the rate of 14 percent ad valorem. The importer
believes the gloves should be classified in subheading
3926.20.30, HTSUS, with duty at the rate of 3 percent ad valorem.
That provision is under Heading 3926, which provides for other
articles of plastics.
In view of the leather portions of the glove, GRI's 2(b) and
3(a) require that a third heading must be considered--4203,
HTSUS, which provides for articles of apparel and clothing
accessories, of leather or of composition leather.
We have thoroughly reviewed prior rulings concerning the
classification of gloves that consisted of fabrics which were
coated or covered with plastics and found that the reasoning
utilized in those rulings has not followed a consistent pattern.
To some extent, the inconsistency may be due to differing
construction of the gloves being ruled upon--a glove which
consists almost entirely of a fabric that has been combined with
plastics may be treated differently than a glove which has
components of different materials. In at least four rulings, this office has classified gloves
that were made of fabrics which were coated or covered with
plastics utilizing the unstated principles of GRI 1. HRL 087536,
dated October 19, 1990; HRL 086155, dated April 20, 1990; 086331,
dated April 20, 1990; and 083645, dated March 1, 1990. For
example:
Heading 3926, HTSUSA, covers other articles of
plastics...of headings 3901 to 3914; subheading 3926.20
covers articles of apparel, including gloves. Although
the gloves would appear to be prima facie classifiable
in Chapter 39, Note 1(1), Chapter 39, HTSUSA, excludes
goods of section XI (textiles and textile articles)
from the Chapter. The Pawtectors, Paw 2s and Dirtpaws
are gloves made from textiles in combination with
plastics. Chapters 61 and 62 both contain eo nomine
provisions for gloves. The existence of these
provisions therefore compels us to view the instant
gloves as goods of section XI and, therefore, excluded
from classification in Chapter 39 by application of
Note 2(1). (083645 supra at pg.3)
In other rulings, this office has classified gloves that
were made of fabrics coated or covered with plastics according to
which material imparted the essential character to those gloves--using GRI 3(b) without first considering GRI 1.
GRI 1 states;
* * * for legal purposes, classification shall be
determined according to the terms of the headings and
any relative section or chapter notes, and, provided
such headings or notes do not otherwise require,
according to the [other General Rules of
Interpretation].
Accordingly, GRI 1 governs the classification of merchandise
when the wording of the pertinent headings, and any applicable
legal notes, require that the subject merchandise be classified
under a specific tariff heading.
In regard to the instant merchandise, Note 2(l) to Chapter
39, HTSUS, states that Chapter 39 does not cover goods of Section
XI (textiles and textile articles). Section XI, HTSUS, includes
Chapter 61 where the provisions for knitted or crocheted gloves
are located. However, Note 1(h) to Section XI states, in equally
specific terms that the provisions in that section do not cover
"Woven, knitted or crocheted fabrics, * * * impregnated, coated,
covered or laminated with plastics, or articles thereof, of
chapter 39." (underscoring added)
Since fabrics which have been impregnated, coated, covered,
or laminated with plastics, and articles thereof, have been
provided for in both Chapter 39 and Section XI, it appears, at
first glance, that the cited notes conflict with each other.
However, when read in the proper context, the notes are
complementary rather than conflicting.
Those notes must be interpreted in conjunction with the
provisions and notes of Chapter 59, HTSUS, to determine whether
fabrics that have been impregnated, coated, covered, or laminated
with plastics are "goods" of Section XI, or prohibited from
classification in that section by Note 1(l) of Chapter 39.
Heading 5903, HTSUSA, which is part of Chapter 59, which, in
turn, is included in Section XI, provides for textile fabrics
impregnated, coated, covered, or laminated with plastics, other
than tire cord fabrics. Note 2 to Chapter 59, HTSUSA, states, in
pertinent part, that Heading 5903 applies to:
(a) Textile fabrics, impregnated, coated, covered or
laminated with plastics, whatever the weight per square
meter and whatever the nature of the plastic material
(compact or cellular), other than:
(1) Fabrics in which the impregnation, coating or
covering cannot be seen with the naked eye * * * for
the purpose of this provision, no account should be
taken of any resulting change of color;
(2) Products which cannot, without fracturing, be bent
manually around a cylinder of a diameter of 7 mm, at a
temperature between 15 C and 30 C (usually chapter 39);
(3) Products in which the textile fabric is either
completely embedded in plastics or entirely coated or
covered on both sides with such material, provided that
such coating or covering can be seen with the naked eye
with no account being taken of any resulting change of
color (chapter 39);
* * *
(5) Plates, sheets or strip of cellular plastics,
combined with textile fabric, where the textile fabric
is present merely for reinforcing purposes (chapter
39).
While Note 2 is somewhat awkwardly phrased in the negative,
it does set out definitive criteria for the determination of
which fabrics that have been impregnated, coated, covered, or
laminated with plastics are not classifiable in Heading 5903.
Those fabrics that have been impregnated, coated, covered, or
laminated with plastics, and are prevented from classification
under Heading 5903 by virtue of Note 2, and articles classifiable
according to those fabrics, are articles of Chapter 39 and
disallowed classification in Section XI. The converse is also
true, that fabrics which have been impregnated, coated, covered,
or laminated with plastics, and which meet the requirements of
Note 2 for classification under Heading 5903, and articles which
are classified according to those fabrics, are goods of Section
XI. As such, they are prohibited from classification in Chapter
39.
This application of the two cited notes is supported by the
Harmonized Commodity Description and Coding System, Explanatory
Notes, which are the official interpretation of the HTSUSA at the
international level (for the 4 digit headings and the 6 digit
subheadings). In its discussion of plastics and textile
combinations, at page 554, it states that the classification of
such combinations is essentially governed by Note 1(h) to Section
XI, Note 3 to Chapter 56, and Note 2 to Chapter 59. Note 3 to
Chapter 56 is basically the same as Note 2 to Chapter 59, only it
is concerned with felts and nonwoven fabrics.
It is our determination that the fabric comprising the
instant glove would be classifiable under Heading 5903 since Note
2 has no requirement preventing such classification. The
plastics can be seen with the naked eye; it can be bent without
fracturing; the fabric is not completely embedded in or covered
on both sides with plastics; and the fabric is present for more
than merely reinforcing purposes. In regard to the reinforcing
function of the fabric, it appears that the cellular plastics is
so thin that it would have no meaningful existence without the
textile fabric. It is the fabric, which has been slightly
napped, that actually forms the glove. Further, the napped
fabric makes the glove useable--it allows the glove to be worn
comfortably, and to be put on and removed without difficulty.
Accordingly, as between the plastics and the textile fabric,
GRI 1 would require classification under Heading 6116. However,
in accordance with GRI's 2(b) and 3(a), since the leather pieces
are integral and/or functional portions of the glove,
classification of the merchandise must be determined by GRI 3.
GRI 3(a) is not applicable because all three headings refer
to part only of the materials or substances making up the
article--Heading 3926 refers to plastics, Heading 4203 refers to
leather, and Heading 6116 refers to knit fabrics.
GRI 3(b) states that an article consisting of different
materials or made up of different components, will be classified
as if it consisted of the material or component which imparts the
essential character to that article. Note that GRI 3(a) is
concerned only with "materials or substances," while GRI 3(b)
additionally refers to "components." In this instance, the glove
consists of two primary components, plastic covered fabric and
leather. It is clearly the imitation suede plastics covered
fabric that supplies the essential character to the instant
merchandise. The bulk of the article, by surface area and
weight, is derived from the plastics covered fabric. A purchaser
would be more concerned with the imitation suede portion of the
glove than with the two pieces of leather. Accordingly, the
plastics covered fabric determines the classification of the
instant merchandise.
HOLDING:
The subject gloves were correctly classified. However, due
to changes made by the Omnibus Budget Reconciliation Act of 1990,
the gloves would presently be classified under the provision for
knit gloves, impregnated, coated, covered or laminated with
plastics and specially designed for use in sports, in subheading
6116.10.08, HTSUS, with duty at the rate of 5.5 percent ad
valorem. This change is retroactive to entries made after
December 1, 1988, and before October 1, 1990, if a proper request
for reliquidation has been filed by the importer prior to April
1, 1991.
Accordingly, if a proper request for reliquidation has been
filed, the protest should be denied in part and the entry
reliquidated under subheading 6116.10.08, with duty at the rate
of 5.5 percent ad valorem. If a proper request for reliquidation
has not been filed, the protest should be denied in full.
A copy of this decision should be appended to the Form 19,
Notice of Action, to be sent to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division