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HQ 965716





September 18, 2002

CLA-2 RR:CR:TE 965716 ttd

CATEGORY: CLASSIFICATION

TARIFF NO: 6116.92.6440

Curtis W. Knauss, Esq.
John M. Peterson, Esq.
Neville Peterson LLP
80 Broad Street – 34th Floor
New York, NY 10004

RE: Reconsideration of New York Ruling Letter H87110, dated February 6, 2002; Glove Liners

Dear Mr. Knauss and Mr. Peterson:

This is in response to your letter, dated June 4, 2002 requesting reconsideration of New York Ruling Letter (NY) H87110, dated February 6, 2002, regarding the classification of two pairs of gloves under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). After review of NY H87110, Customs has determined that the classification of the subject gloves in subheading 6116.92.6440, HTSUSA, was correct. For the reasons that follow, this ruling affirms NY H87110. Samples were submitted for review.

FACTS:

The articles under consideration are two pairs of gloves, identified as Model 802 and Model 800. In H87110, Customs described the merchandise as follows:

Two samples were submitted. Model 802 is a full fingered knit glove composed of finely machine knit 65% cotton 35% polyester fabric. A textured plastic gel pad is inserted and sewn into place between two plies of fabric (the outer shell & inner liner) on the palm side of the glove. Model 800 is the same item in a half finger version.

The plastic retail packaging identifies the items as “Anti-vibration and Impact gloves.” Both models may be used as glove liners or worn alone.

In NY H87110, Customs classified the subject merchandise in subheading 6116.92.6440, HTSUSA, which provides for “Gloves, mittens and mitts, knitted or crocheted: Other: Of cotton: Other: Made from a pre-existing machine knit fabric: Without fourchettess, other”. You assert that the plastic gel component of the gloves imparts the essential character of each item. You contend that the gel portion absorbs the shocks from vibrations and serves to impart the character and use of each sample.

ISSUE:

What is the proper classification of the subject merchandise?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” In the event that 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 then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

Heading 6116, HTSUSA, provides for “Gloves, mittens and mitts, knitted or crocheted.” The EN to heading 6116 provide, in part, for the following:

This heading covers all knitted or crocheted gloves, without distinction between those for women or girls and those for men or boys. It includes ordinary short gloves with separate fingers, mittens covering only part of the fingers, mitts with separation for the thumb only and gauntlet or other long gloves that may cover the forearm or even part of the upper arm. Emphasis added. The EN to heading 6116, HTSUSA, further explain that the heading does not cover:

Knitted or crocheted gloves lined with furskin or artificial fur, or with furskin or artificial fur on the outside (other than as mere trimming) (heading 43.03 or 43.04).

Gloves, mitts and mittens for babies (heading 61.11).

Textile gloves, mittens and mitts, not knitted or crocheted (heading 62.16).

Friction “gloves” for massage or toilet use (heading 63.02).

Customs has addressed the issue of the proper classification for gloves comprised of textile material and plastic material in multiple rulings. In HQ 953768, dated July 23, 1993, we classified a long cotton knit work glove coated with polyvinyl chloride (PVC) plastic in heading 6116, HTSUSA. Likewise, in 086358, dated June 19, 1991, we classified textile backed PVC plastic gloves in heading 6116. See also HQ 088539, dated June 6, 1991 and HQ 955193, dated April 19, 1994. Moreover, in HQ 953768, dated July 23, 1993, Customs based classification of glove liners on GRI 1, noting that some prior rulings had erroneously utilized GRI 3(b) to classify similar merchandise without first considering GRI 1.

In this case, both styles of the subject gloves are comprised of finely machine knit 65 percent cotton and 35 percent polyester fabric. While a plastic gel pad is inserted and sewn between the two plies of fabric (the outer shell and inner liner) on the palm side of each glove, based on the broad language of the EN that the “heading covers all knitted or crocheted gloves,” the subject gloves fall within the purview of heading 6116, HTSUSA, as knitted gloves. Moreover, the subject gloves are not precluded from the heading by any of the exclusions listed in the EN to heading 6116, HTSUSA. Like the gloves in HQ 953768 and HQ 088539, the subject gloves are also classifiable in heading 6116, HTSUSA, which covers “Gloves, mittens and mitts, knitted or crocheted.” Specifically, the subject gloves are classified in subheading 6116.92.6440, HTSUSA, which provides for “Gloves, mittens and mitts, knitted or crocheted: Other: Of cotton: Other: Made from a pre-existing machine knit fabric: Without fourchettes, other.”

In your letter dated June 4, 2002, you contend that the two styles of glove liners at issue are classifiable in subheading 3926.20, 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, mittens and mitts).” You assert that according to GRI 1, the terms of heading 3926, HTSUSA, describe the glove liners at issue and they would, therefore, be classifiable under that heading. We disagree with your contention that the subject gloves are properly classifiable under subheading 3926.20, HTSUSA. The EN to heading 3926 indicate that the heading is the basket provision for plastic articles not described more specifically elsewhere in the tariff schedule. Moreover, note 1(l) to chapter 39 excludes goods of section XI (textiles and textile articles) from the chapter. As the subject gloves are more specifically provided for in heading 6116, HTSUSA, they are precluded from classification in heading 3926, HTSUSA.

Moreover, under GRI 1, classification of the subject gloves must begin at the four digit level and they are properly classified under the four digit heading that most specifically describes them. Following the hierarchical system of the HTSUSA, the subject gloves must then be classified under the appropriate six and then eight digit subheadings, and finally under the proper statistical annotation. Accordingly, before consideration is given to classification in a subheading within a four digit heading, the subject merchandise must first satisfy the provisions of that four digit heading. In this case, heading 6116, HTSUSA, which covers “Gloves, mittens and mitts, knitted or crocheted,” is unmistakably more descriptive for the subject gloves than heading 3926, HTSUSA, which covers “Other articles of plastics and articles of other materials of headings 3901 to 3914.” When an article is precluded from being classifiable within a four digit heading, it may not then be classified in that heading because a subheading seems appropriate. As the subject merchandise is not properly classifiable at the four digit level in heading 3926, HTSUSA, it is improper to invoke subheading 3926.20, as only the four digit headings are comparable. Therefore, under GRI 1, the subject gloves are precluded from classification in heading 3926, HTSUSA, as they are more specifically provided for in heading 6116, HTSUSA.

Furthermore, you mistakenly challenge that the subject merchandise cannot be classified solely on the basis of GRI 1. You assert that the glove liners are correctly classified under heading 3926, HTSUSA, pursuant to GRI 3(b). You further assert that the plastic portion of the glove liners imparts the essential character of the glove in question and that the glove liners should be classified under heading 3926, HTSUSA.

We disagree with both of your conclusions that the merchandise is classifiable in heading 3926 and that GRI 3(b) is applicable in this case. GRI 3 provides, in pertinent part, that “When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:”

The heading which provides the most specific description shall be preferred to headings providing a more general description

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

Here, the glove liners at issue are simply not prima facie classifiable under two or more headings. The subject gloves are solely classifiable according to GRI 1, which states, in part, “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 GRI]. Heading 6116, HTSUSA, provides for “Gloves, mittens and mitts, knitted or crocheted.” As the articles at issue are knitted gloves, they are eo nomine provided for within heading 6116 and therefore classified in heading 6116 under application of GRI 1.

HOLDING:

The subject merchandise is classified in subheading 6116.92.6440, HTSUSA, which provides for “Gloves, mittens and mitts, knitted or crocheted: Other: Of cotton: Other: Made from a pre-existing machine knit fabric: Without fourchettes, other.” The applicable general column one rate of duty is 23.8 percent ad valorem. The textile restraint category is 331. There are no applicable quota/visa requirements for the products of World Trade Organization (WTO) members. The textile category number above applies to merchandise produced in non-WTO countries.

NY H87110, dated February 6, 2002, is hereby AFFIRMED.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs office. The Status Report on Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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