CLA-2 CO:R:C:F 086358 SLR
David Craven, Esq.
Riggle, Keating and Craven
205 West Wacker Drive
Suite 2022
Chicago, IL 60606-1215
RE: Revocation of HRL 085562 of December 31, 1989;
Plastic Coated Textile Batting Gloves; Chapter 61 Knitted
Textile Gloves; Not Chapter 39 Other Articles of Plastics.
Dear Mr. Craven:
On December 31, 1989, this office issued Headquarters Ruling
Letter (HRL) 085562, wherein certain textile backed PVC batting
gloves were classified in subheading 3926.20.2000, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), the
provision for baseball and softball gloves and mitts of plastic.
The Seattle District Director has since requested that we review
this classification; he posits that the subject articles are
more properly classifiable as textile sporting gloves in
subheading 6116.10.4505, HTSUSA (later redesignated as
subheading 6116.10.5001).
FACTS:
The instant inquiry involves two styles of batting gloves.
Both styles consist of a knit 100 percent rayon substrate which
has been coated with cellular polyvinyl chloride (PVC) plastic;
the fourchettes and trim are made of a knit 100 percent nylon
fabric. One style of glove has a Velcro-type closure at the
wrist, while the other does not.
In HRL 085562, Headquarters, through the application
of GRI 3(b), determined that the PVC (as opposed to the textile
knit fabric) represented the essential character of the gloves.
Accordingly, the gloves were classified as baseball gloves of
plastic in subheading 3926.20.2000, HTSUSA.
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On January 18, 1990, our Seattle office requested the
reconsideration of HRL 085562. That office claims that
Chapter 59, Legal Note 2(a)(5) and Chapter 39, Legal Note 2(l),
not GRI 3(b), govern the classification of the subject
merchandise. The Seattle District maintains that as the gloves
consist of cellular plastic combined with textile fabric and the
textile fabric is present for more than mere reinforcement, they
are classifiable as textile sporting gloves in subheading
6116.10.4505, HTSUSA.
In your letter of June 8, 1990, you concur with the
rationale and holding of HRL 085562 and ask that that ruling not
be modified. In addition to your substantive claims, you charge
that Seattle's request for the reconsideration of HRL 085562 was
made in violation of section 177.11 of the Customs Regulations in
that neither you nor your client was informed by that office of
the reconsideration of HRL 085562. You further note that there
may exist a uniform and established practice with regard to
Customs classification of PVC batting gloves such that the
procedures specified in section 177.10 of the Customs Regulations
will have to be followed.
ISSUES:
I. Did the Seattle District fail to comply with section
177.11 of the Customs Regulations by failing to notify either
the law firm or their client of its reconsideration request?
II. Whether the batting gloves are "of plastic" or
"of textile" for classification purposes.
III. Does a uniform and established practice of classifying PVC
batting gloves exist such that the notice and comment procedures
of section 177.10 of the Customs Regulations must be activated?
LAW AND ANALYSIS:
ISSUE I
Section 177.11(b)(1) of the Customs Regulations reads:
(b) Certain current transactions--(1)
When a ruling has been issued. (i) Requests
by field offices. If any Customs Service
office has issued a ruling letter with
respect to a particular Customs transaction
and the Customs Service field office having
jurisdiction over that transaction feels that
the ruling should be modified or revoked,
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the field office will forward to the Headquarters
Office, pursuant to [section] 177.9(b)(1), a request
that the ruling be reconsidered. The field office
will notify the importer or other person to whom
the ruling letter was issued, in writing, that
it has requested the Headquarters Office to
reconsider the ruling.
Section 177.11 of the Regulations governs requests for
internal advice. This case does not involve a request for
internal advice. Duties covering the subject merchandise having
been paid and corresponding entries subsequently liquidated, no
current transaction is underway. The notice requirement of
section 177.11(b)(1) of the Customs Regulations, therefore,
did not apply to the Seattle District.
ISSUE II
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 is determined
according to the terms of the headings and any relative section
or chapter notes.
Heading 3926, HTSUSA, provides for other articles of
plastics. Heading 6116, HTSUSA, provides for gloves, mittens
and mitts, knitted or crocheted. The batting gloves at issue
consist of a cellular plastic coated textile material. Are they
considered to be "of plastics" or "of textile" for classification
purposes?
The Legal Notes to Section XI, HTSUSA, Textiles and Textile
Articles, indicate that:
1. This Section does not cover:
* * *
(h) Woven, knitted or crocheted fabrics,
felt or nonwovens, impregnated, coated,
covered or laminated with plastics, or
articles thereof, of Chapter 39;
* * *
Chapter 39, Legal Note 2(l), however, indicates that:
2. This Chapter does not cover:
(l) Goods of section XI (textiles and
textile articles);
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Regarding plastics and textile combinations the General
Explanatory Notes to Chapter 39 provide, in pertinent part,
that:
[T]he classification of plastics and textile
combinations is essentially governed by
Note 1 (h) to Section XI, Note 3 to Chapter 56
and Note 2 to Chapter 59.
Legal Note 2 to Chapter 59 provides, in pertinent part, that:
2. 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:
(5) Plates, sheets or strip of cellular
plastics combined with textile fabric,
where the textile fabric is present
merely for reinforcing purposes
(Chapter 39).
In the instant case, the textile material is present for
more than mere reinforcement. Without the textile substrate,
the gloves would be uncomfortable because the vinyl would trap
perspiration. The textile fabric also permits the tightly
fitted gloves to be easily put on and taken off the hand. As the
articles at issue would not be subject to exclusion (5) found in
the Legal Note 2(a) to Chapter 59, they are considered to be "of
textile" for classification purposes.
Headquarters has employed GRI 3(b) when classifying gloves
composed of what the HTSUSA would consider to be two or more
separate and distinct materials. As the instant gloves are
considered to be made of one material for which a specific
provision exists under the HTSUSA, classification will be
according to GRI 1.
ISSUE III
In response to the assertion that a uniform and established
practice exists with regard to the classification of same or
similar PVC coated textile gloves, Customs has not received
sufficient information indicating that at various ports the
merchandise at issue has undergone uniform liquidations at the
claimed HTSUSA provision. Additionally, please note that a
practice established under the Tariff Schedules of the United
States Annotated does not carry over to goods entered under
the Harmonized Tariff Schedule. An HTSUSA classification
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determination which appears to follow a practice established
under the TSUSA does not signal the continuation of that
practice.
HOLDING:
As the instant case does not involve a field request for
internal advice, the notice requirement of section 177.11(b)(1)
of the Customs Regulations did not apply to the Seattle District.
Additionally, since there exists no uniform and established
practice with regard to the classification of PVC coated textile
batting gloves under the HTSUSA, the notice and comment
procedures of section 177.10 of the Custom Regulations need not
be activated.
The batting gloves at issue are classifiable in
heading 6116, HTSUSA, which provides for gloves, mittens and
mitts, knitted or crocheted. Subheading 6116.10, HTSUSA, which
provides for gloves, mitten and mitts impregnated, coated or
covered with plastics or rubber, represents the appropriate
classification of the merchandise at the six-digit subheading
level.
Regarding the proper classification at the eight-digit
subheading level, Congress recently passed technical corrections
to the Customs and Trade Act of 1990. In so doing, subheading
6116.10.50, HTSUSA, was deleted, and subheading 6116.10.10,
HTSUSA, was replaced with subheading 6116.10.08, HTSUSA.
Subheading 6116.10.08 provides for "other gloves, mittens, and
mitts, all the foregoing specially designed for use in sports,
including ski and snowmobile gloves, mittens, and mitts."
This provision covers the gloves at issue.
The batting gloves are classifiable in subheading
6116.10.0800, HTSUSA, which provides for gloves, mittens and
mitts, knitted or crocheted, 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. The applicable rate of
duty is 5.5 percent ad valorem.
HRL 085562 is hereby revoked pursuant to 19 CFR 177.9(d)(1).
Sincerely,
John Durant, Director
Commercial Rulings Division