CLA-2 CO:R:C:T 089033 JS
Karen J. Hiatt
Regional Director
Commercial Operations Division
One World Trade Center
Suite 534
Long Beach, CA 90831
RE: Decision on Application for Further Review of Protest No.
2704-90-000704 on the classification of a rubberized sport
glove
Dear Ms. Hiatt:
This is a decision on application for further review of a
protest timely filed on behalf of Thunderwear, Inc., on February
15, 1990, against your decision on the classification of
rubberized gloves entered under entry number 231-0751890-6 on
March 13, 1989 and liquidated on November 17, 1989.
FACTS:
A sample of the present merchandise was provided for our
inspection. Glove style T-657 is a cut and sewn full fingered,
unlined glove manufactured from nylon knit fabric which has been
coated with neoprene rubber approximately two millimeters thick.
The outer surface is texturized and the fingers are precurved,
presumably for better grip. A hook and loop strap at the wrist
permits the glove to be tightened for better fit.
The packaging in which the item is sold states that:
Thunderwear gloves are made with the finest workmanship and
materials available. They are designed to provide warmth
flexibility, non-slip grip, strength and durability that
will stand up to the rugged challenge of your favorite
action sport.
Below this point-of-sale advertising are listed nine sports for
which these gloves are considered ideal.
2
This item was classified and liquidated under HTS
6116.10.2510, which provides for textile gloves, mittens and
mitts. The importer, Thunderwear Inc., contests this
classification. It contends that the goods are properly
classified under subheading 4015.19.5000, which provides for
rubber clothing accessories (including gloves).
ISSUE:
1) Is the present merchandise classified as a knit textile
glove of Chapter 61, or as a rubber glove of chapter 40
under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA).
2) Does the glove show "special design" for use in sports.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI). GRI 1 requires
that classification be determined according to the terms of the
headings and any relative section or chapter notes and, unless
otherwise required, according to the remaining GRI, taken in
order. Where goods cannot be classified solely on the basis of
GRI 1, and if the headings and legal notes do not otherwise
require, the remaining GRI may be applied, taken in order.
The present merchandise is prima facie classifiable in
chapter 40, which provides for rubber and articles thereof.
Chapter Note 2(a) excludes goods of Section XI (textiles and
textile articles). Gloves, for all purposes, of vulcanized
rubber, are one of the items classified under heading 4015. The
Explanatory Notes state that heading 4015 covers articles of
apparel and clothing accessories (including gloves) e.g.,
protective gloves and clothing for surgeons, radiologists,
divers, etc., whether assembled by means of an adhesive or by
sewing or otherwise obtained. The Notes further explain that
these goods may be:
1) Wholly of rubber
2) Of woven, knitted or crocheted fabrics, felt or
nonwovens, impregnated, coated, covered or laminated
with rubber, other than those falling in Section XI
(see Note 3 to Chapter 56 and Note 4 to Chapter 59).
3) Of rubber, with parts of textile fabric when the
rubber is the constituent giving the goods their
essential character.
3
However, articles of apparel and clothing accessories of textile
materials combined with rubber threads (Chapter 61 or 62), are
excluded.
The competing provision, heading 6116, provides for gloves
impregnated, coated or covered with rubber. In order to qualify
as such, the glove must be made of fabric which constitutes
rubberized textile fabric under Chapter 59 Note 4. The
applicable portion, part (d) of Note 4, states that a rubberized
textile fabric is a plate, sheet, or strip of cellular rubber,
combined with textile fabric, where the textile fabric is more
than mere reinforcement. The determination of whether such
fabric constitutes mere reinforcement encompasses the question of
whether it behaves as such in a water sports glove made of
rubber. In this case, the knit fabric lining is more than mere
reinforcement since it allows the glove to be worn and removed
with greater ease. In addition, it provides comfort, warmth and
dryness to the wearer. Consequently, we find that the glove at
issue is classifiable as a textile article under heading 6116 of
Section XI.
The design of this glove, which features a texturized
surface, pre-curved fingers and a wrist tightener, in conjunction
with the advertising materials provided, clearly indicate that
this article shows special design for use in sports.
HOLDING:
The merchandise at issue is classified under subheading
6116.10.0800, HTSUSA, which provides for gloves, mittens and
mitts, knitted or crocheted: gloves, mittens and mitts
impregnated, coated or covered with plastics or rubber: other
gloves, mittens and mitts, all the foregoing specially designed
for use in sports, including ski and snowmobile gloves, mittens
and mitts, dutiable at the rate of 5.5 percent ad valorem.
Due to the amendments passed under the Omnibus
Reconciliation Act of 1990, the current HTS subheading for this
merchandise is 6116.10.0800, rather than 6116.10.2510. The
amendments, which took effect October 1, 1990, also have
retroactive application for entries made after December 1, 1988,
and before October 1, 1990, provided a proper request for
reliquidation was filed by the importer prior to April 1, 1991.
There is no evidence in the file, however, to indicate that the
importer has made a request for reliquidation of this entry. In
the absence of such a request, the protest should be denied in
full.
4
A copy of this decision should be furnished to the protestant
along with the form 19 notice of action.
Sincerely,
John Durant, Director
Commercial Rulings Division