HQ 0086358 - 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. - United States International Trade Commision Rulings

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HQ 086358

June 19, 1991

CLA-2 CO:R:C:F 086358 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6116.10.0800

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.

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,
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);

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
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

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