CLA-2 CO:R:C:T 089847 CC

District Director of Customs
127 North Water Street
Ogdensburg, N.Y 13669

RE: Decision on Application for Further Review of Protest No. 0712-91-000809; Work Gloves

Dear Sir:

This protest was filed against your decisions in the liquidation of various entries involving the importation of work gloves produced in Canada.

FACTS:

This protest concerns the following styles of work gloves: 3500-FWG, 611-FL, 600-FL, 2512-FWG, and 202-I. Style 3500-FWG is a jersey knit fabric mitten coated with a heavy layer of polyvinyl chloride (PVC) and nitrile. A separate knit backed foam liner is sewn into the mitten, and this article has a rib knit cuff. Style 611-FL is a knit fabric glove coated with a heavy layer of PVC. Style 600-FL is similar to 611-FL, except it has a knit wrist. Style 2512-FWG is a jersey knit fabric glove coated with a heavy layer of PVC. The inner side of the jersey has been brushed, creating a napped texture. Style 202-I is a knit fabric glove coated with nitrile. All of the gloves are greater than 50 percent by weight of rubber or plastic.

The entries covering the work gloves were liquidated under subheading 6116.10.3540 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provided for gloves, mittens and mitts, knitted or crocheted, gloves, mittens and mitts impregnated, coated or covered with plastics or rubber, other, without fourchettes, other, other. The protestant claims that this merchandise, except for Style 202-I, is properly classifiable under subheading 3926.20.1050, HTSUSA, which provides for other articles of plastics and articles of other materials of headings 3901 to 3914, articles of apparel and clothing accessories (including gloves), gloves, seamless, other, other. The protestant claims that Style 202-I is classifiable under subheading 4015.19.1050, HTSUSA, which provides for articles of apparel and clothing accessories (including gloves), for all purposes, of vulcanized rubber other than hard rubber, gloves, other, seamless, other.

ISSUE:

Whether the merchandise at issue is classifiable in Headings 3926 and 4015, HTSUSA, or instead, in Heading 6116, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

Four styles of the gloves at issue are made of knit fabric that has an application of plastics. In Headquarters Ruling Letter (HRL) 088539, dated June 3, 1991, we ruled on gloves made of plastic coated knit fabric. We stated in that ruling concerning the classification of plastic coated gloves the following:

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.

Note 2 to Chapter 59 would determine whether the fabric of the gloves at issue is considered impregnated, coated, covered or laminated with plastics for classification purposes. This note states that Heading 5903 applies to the following:

(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 (usually Chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of color.

It is our view that the wording of Note 2(a)(1), "visible to the naked eye," is a clear expression by the drafters of the Harmonized System that a significant, if not substantial, amount of material must be added to a fabric for it to be considered "impregnated, coated, or covered." Each of the gloves, except for style 202-I, clearly has a heavy plastics coating that is visible to the naked eye. In addition, no other part of Note 2 to Chapter 59 would exclude these plastic coated knit gloves from being classified in Section XI. Therefore this merchandise is classifiable as coated with plastic within Heading 6116, HTSUSA.

One style of the gloves at issue, 202-I, is made of a rubber coated knit fabric. This glove is clearly made of textile fabric coated with rubber. Accordingly, this merchandise is classifiable as coated with rubber within Heading 6116. HOLDING:

At the time of importation the merchandise at issue is classified under subheading 6116.10.3540, which provides for gloves, mittens and mitts, knitted or crocheted, gloves, mittens and mitts impregnated, coated or covered with plastics or rubber, other, without fourchettes, other, other.

Articles that meet the definition of "goods originating in the territory of Canada" (see General Note 3(c)(vii)(B), HTSUSA) are normally 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 normally 11.2 percent ad valorem (otherwise, the general rate of duty is 14 percent ad valorem).

The protest should be denied. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.


Sincerely,

John Durant, Director
Commercial Rulings Division