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