Gird Yourself to Learn about Medical Compression Textiles

Gird yourself for more than you ever wanted to know about medical compression textiles. But don't feel I'm putting you under pressure, it won't be on a test.

Note to the trade: post-surgery compression garments are not, generally duty-free as medical devices. This is significant, as the correct duty on these articles can be as high as 20% for girdles and 23.5% for corsets, even if they are post-operative garments. NOTE, these import duties can be avoided if you source from a country the U.S. has a free trade agreement with and you satisfy the agreement's yarn forward rule.

Some importers have tried, unsuccessfully, to take advantage of tariff heading 9021, which provides duty-free treatment for:

Orthopedic appliances, including crutches, surgical belts and trusses; splints and other fracture appliances; artificial parts of the body; hearing aids and other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability.

Specially they have looked to Harmonized Tariff Schedule of the U.S. classification 9021.90.81, which is a "basket" category, which catches anything in 9021 not more specifically provided in that heading.

They were not unreasonable in looking to 9021. Chapter 90 Note 6 states:

For the purposes of heading 9021, the expression 'orthopedic appliances' means appliances for:

(a) Preventing or correcting bodily deformities; or

(b) Supporting or holding parts of the body following an illness, operation or injury.

However, they have not been successful in getting Customs to agree.

For example, a company proposed classification at 9021.90.81 (duty-free) for textile knee and leg braces. Customs rejected that and classified them at 6307.90.9889, with rate of duty of 7%. They also proposed 9021.90.81 for compression gloves, but Customs said the correct classification is 6116.99.4800, with rate of duty of 18.8%. This ruling, N229875 (September 5, 2012) citing ruling HQ966874 (May 17, 2004), which stated:

[S]ubheading 9021.90 did not apply to items which "are nothing like either the hearing aids of the heading text or the listed examples in the Explanatory Notes. First, all of the appliances listed are precision electronic devices that actively compensate for the defect or disability. Second, all of the examples assist or replace the function of a failed organ.…"

In ruling N304769 (July 11, 2021), Customs addressed several post-surgery torso compression garments and classified them under heading 6212, which provides for "brassieres, girdles, corsets, braces, suspenders, garters and similar articles."

Some were classified at 6212.20.00, which provides for girdles, and has a 20% rate of duty. Others were classified at 6212.90.00, which provides for "other," with a rate of duty of 6.6%. The lower or higher duty was depending on whether the garment had the "structural characteristics of a girdle."

The question of what make a girdle a girdle has been the subject of rulings, and even litigation. In ruling H256542 (January 9, 2018) Customs looked to the Harmonized Commodity Description and Coding System Explanatory Notes (ENs). The ENs constitute the official interpretation of the Harmonized System at the international level. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The ENs to heading 62.12, provide in pertinent part, that:

The heading includes, inter alia:

* * *

(2) Girdles and panty-girdles.

* * *

(7) Maternity, post pregnancy or similar supporting or corrective belts, not being orthopaedic appliances of heading 90.21.

Customs went on to state:

It is well settled that articles enumerated in heading 6212, HTSUS, each feature the unifying characteristic of providing support for the body or other garment. Victoria’s Secret Direct, LLC v. United States, 769 F.3d 1102, 1108 (Fed. Cir. 2014). This support for the body or other garments, constitutes the paramount function of the exemplars listed eo nominee in heading 6212, HTSUS. Victoria’s Secret at, 1108. The subheadings of heading 6212, HTSUS, focus the scope of the heading into distinct categories while retaining the unifying characteristic and paramount function of the overall heading. The subheadings at issue are contrasted by the least descriptive (subheading 6212.90.00, HTSUS) and the most descriptive terms (subheading 6212.20.00, HTSUS). In particular, subheading 6212.90.00, HTSUS, is a residual provision which provides for garments not otherwise specified elsewhere in heading 6212, HTSUS. On the other hand, subheading 6212.20.00, HTSUS, contemplates merchandise which is classifiable eo nominee as girdles and/or panty-girdles. Accordingly, garments which share the essential unifying characteristic, and paramount function of the overall heading while meeting the description of a girdle or panty-girdle are classifiable ejusdem generis with the articles of subheading 6212.20.00, HTSUS.

While the ENs to heading 6212, HTSUS, do not provide a definition of a girdle, both the Courts and CBP have addressed its meaning. The Ninth Circuit stated that: "[a] girdle may be defined as an undergarment that provides support and holds in the body along the lower torso, specifically, including the waist and hips." Riddell, Inc. v. United States, 906 F. Supp. 2d 1355, 1365 (Fed Cir. 2013); citing, HQ 957469, dated November 7, 1995, CBP defined a girdle as being: "[f]lexible, light-weight shaped corset, made partly or entirely of elastic… [a]n elasticized flexible undergarment worn over the hips and waist.").

CBP Informed Compliance Publication, Classification: Apparel Terminology Under the HTSUS (June 2008) page 15. "Girdles/panty girdles (6212) - are garments normally worn next to the skin, which are designed to mold the lower torso and sometimes legs. They are typically made with two-way stretch fabric or one-way stretch fabric with non-stretchable control panels, with or without garters. Panty girdles are girdles with a closed crotch, and resemble panties."

Similarly, in HQ 959284, dated October 29, 1996, CBP stated that: "A girdle is commonly understood as a garment which provides overall support for the lower torso- this would include the cinching of the waist to enhance the bosom, holding in hips, rear and thighs, holding up stockings (when garters are present) and providing for decency and hygiene when the girdle is also worn in place of panties."

The common factors found among the various definitions offered for girdles and panty-girdles is that these items are undergarments made up of elastic or stretchable fabric which provide body support to the lower torso, hip, waist, and thigh area.

Customs also ruled:

[T]he post-surgical nature of [the garment] does not preclude classification under subheading 6212.20.00, HTSUS. As EN 62.12 explains, post-pregnancy, supportive or corrective belts which are not orthopedic appliances of heading 9021, HTSUS, are classifiable in this heading. For example, in NY N014148 (August 10, 2007), CBP classified a 'post-partum girdle' as a girdle under subheading 6212.20.00, HTSUS. Likewise, in NY N004382 (January 8, 2007), CBP classified a 'maternity support garment' as a girdle under subheading 6212.20.00, HTSUS. By contrast, in HQ 964402 (May 24, 2002)…

CBP Considers Complex Apparel Classification Questions

Customs Bulletin And Decisions, Vol. 53, No. 40, November 6, 2019, contains two items of interest--

Proposed Modification Of Twelve Ruling Letters And Proposed Revocation Of Two Ruling Letters And Proposed Revocation Of Treatment Relating To The Tariff Classification Of Garments With Overlays. In this very complex case garments were constructed of both knitted and woven fabric in the same garment making it difficult to determine which fabric imparts the essential character. Further there was the question of whether the overlay fabric "constitutes more than mere trimming."

Proposed Modification Of Three Ruling Letters And Proposed Revocation Of Treatment Relating To The Tariff Classification Of Women’s Shirts With Partial Openings And No Means Of Closure. In this case the garments might be classified as shirts, sweaters, or in a basket classification of "other" garments. Specifically, at issues was "Is a means of closure necessary for garments of heading 6106, HTSUS?"

In such complex cases CBP often consults the Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") which constitute the "official interpretation of the Harmonized System" at the international level. (See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).) While neither legally binding nor dispositive, the ENs "provide a commentary on the scope of each heading" of the HTSUS and are "generally indicative of [the] proper interpretation" of these headings. However, the Harmonized System ("HS") itself, and the U.S. tariff schedule that is based on the HS, the ENs are available only for purchase, and they are quite expensive, 749 Euro. And, as they are periodically updated, that is a recurring cost.

Proposed Revocation and Modification of Ruling Letters Relating to the Tariff Classification of Bottle Bags. Duties Rise from Zero to 17.6% and 20%

In HQ H235569, NY N179138, NY N230128 and NY N204304, CBP classified the bottle bags in heading 4202, HTSUS, specifically in subheading 4202.92.90, HTSUS (now subheadings 4202.92.91, HTSUS and 4202.92.97, HTSUS), which provided for " ... traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Other: With outer surface of sheeting of plastic or of textile materials: Other: Other."

CBP has reviewed and HQ H235569, NY N179138, NY N230128 and NY N204304, and has determined the ruling letters to be in error. It is now CBP's position that the bottle bags in HQ H235569 are properly classified in heading 4202, HTSUS, specifically in subheading 4202.92.39, HTSUS, which provides for " ... traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Other: With outer surface of sheeting of plastics or of textile materials: Travel, sports and similar bags: With outer surface of textile materials: Other." Rate of duty 17.6%

It is now CBP's position that the bottle bags in NY N179138, NY N230128, and NY N204304 are properly classified in heading 4202, HTSUS, specifically in subheading 4202.92.45, HTSUS, which provides for " ... traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Other: With outer surface of sheeting of plastics or of textile materials: Travel, sports and similar bags: Other." Rate of duty 20%

CBP is proposing to revoke HQ H235569 and NY N179138, and modify NY N230128 and NY N204304, and to revoke or modify any other ruling not specifically identified to reflect the analysis contained in the proposed HQ H273867, set forth as Attachment E to this notice. Additionally, pursuant to 19 U.S.C. § 1625(c)(2), CBP is proposing to revoke any treatment previously accorded by CBP to substantially identical transactions. Before taking this action, consideration will be given to any written comments timely received. Comments must be received on or before July 6, 2018.

The subject merchandise consists of non-woven polypropylene bags that contain two handles and have open tops. These bags measure approximately nine and a half inches in width and 10 inches in height. When open, they have a depth of approximately seven inches. The bag's handles are also composed of polypropylene and contain a fastener of polypropylene with hook and loop fastener to keep the handles together. The bottom of the subject bags is composed of two layers of polypropylene fabric with padding inserted in between. The top of the bags contains a small loop of polypropylene to allow the bags to be hung so as to be displayed for sale. The inside of the bags is divided into six equally sized compartments by polypropylene dividers. Each compartment measures approximately five inches in width and nine inches in length when closed and can expand to fit the bottles inserted therein. The exterior of the bags contains a tri-colored printed design containing grapes and grape leaves. The logos of 13 grocery stores appear below the design.

These bags are sold or distributed free of charge at stores that sell food and beverages, such as grocery stores, liquor stores, convenience stores, and wineries. Furthermore, the importer, Earthwise, almost always sells them with the names or logos of the stores that distribute them, and its competitors follow a similar practice.

At issues is whether bags that contain compartments sized to hold bottles are classified as "shopping bags" of subheading 4202.92.30, HTSUS, or as "bottle cases or similar containers" of subheading 4202.92.90, HTSUS, in accordance with Additional U.S. Note 1 to Chapter 42, HTSUS.

For the purposes of heading 4202, the expression "travel, sports and similar bags" means goods, other than those falling in subheadings 4202.11 through 4202.39, of a kind designed for carrying clothing and other personal effects during travel, including backpacks and shopping bags of this heading, but does not include binocular cases, camera cases, musical instrument cases, bottle cases and similar containers. The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The EN to heading 4202, HTSUS, states, in pertinent part, the following: "This heading covers only the articles specifically named therein and similar containers."

The importer argued that, in accordance with lexicographic sources and judicial definitions in a number of cases, the instant merchandise is a "shopping bag" as named in Additional U.S. Note 1, and therefore is classified as a type of "travel, sports or similar bag," in subheading 4202.90.30, HTSUS. In support of this argument, they cite HQ 963575, dated October 12, 1999, HQ 964450, dated August 8, 2002, HQ 951113, dated May 19, 1992, HQ 957917, dated July 7, 1995, HQ 950708, dated December 24, 1991, and HQ 088562, dated December 5, 1991. Lastly, they argue that because the subject merchandise is classified as shopping bags of subheading 4202.92.30, HTSUS, and are made of polypropylene fabric, they are also classified in subheading 9902.92.30, HTSUS, and are accorded duty-free treatment under this provision.

In response, CBP notes that Totes, Inc. v. United States, 69 F.3d 495; 1995 U.S. App. LEXIS 29841; 17 Int'l Trade Rep. (BNA) 1929 (Ct. Int. Trade 1995), decided the classification of a rectangular case used to organize and store items such as motor oil, tools, and jumper cables in an automobile trunk. It had a zippered top opening, two straps at the sides which formed handles, and reinforced bottom seams. The case's interior was divided into three discrete storage areas using dividers that snapped into place. Totes, Inc., 69 F.3d at 496. There, the court found that heading 4202, HTSUS, is an eo nomine provision, as is subheading 4202.92.90, HTSUS. Furthermore, the court found that the subject case's interior dividers made it more than a general carrying case that could carry any merchandise. Hence, the court found for classification in subheading 4202.92.90, HTSUS, as "similar to" jewelry boxes and cutlery cases, whose purpose was to facilitate an organized separation, protection, storage or holding of their contents. Id. at 497, 500. Furthermore, the court stated that "as applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purpose that unite the articles enumerated eo nomine in order to be classified under the general terms." Id. at 498. The court found that the rule of ejusdem generis requires only that the subject merchandise share "the essential characteristics" of the goods listed eo nomine in heading 4202, HTSUS, and that these characteristics were those of "organizing, storing, protecting, and carrying various items." Id. at 498.

Subsequent CBP rulings have adhered to this analysis, and have classified bags and cases with fitted or divided interiors with the items in heading 4202, HTSUS, to which they are most akin. See, e.g., HQ H053756, dated September 4, 2009; HQ H064875, dated January 4, 2010; HQ 956140, dated October 29, 1994; HQ 086884, dated August 13, 1990. These rulings are consistent with prior CBP rulings on substantially similar merchandise. See NY N230128; NY N224243; NY N219153; NY N204304; NY N179138; NY N093287; NY N104559.

In the present case, while CBP agreed with counsel that an eo nomine provision such as heading 4202, HTSUS, covers all forms of the subject merchandise, CBP disagreed that the subject bottle bags should be classified in the same provision as "shopping bags." The subject bottle bags can be distinguished from the type of general shopping bags of the cases to which counsel cites. The shopping bags of Adolco Trading Co., 71 Cust. Ct. 145; 1973 Cust. Ct. LEXIS 3350; Cust. Dec. 4487 (1973), for example, were of a large size, and had wide open tops and handles. However, they contained no internal divisions, and as such were almost always used in grocery stores and similar places where customers could use them to transport any type of merchandise. See Adolco Trading Co., 71 Cust. Ct. 150–1511. The subject bags, by contrast, are no longer capable of carrying any type of merchandise because of their fitted interior compartments, which are in the shape of bottles. Furthermore, these compartments are sewn into the subject bags, making their removal impractical. A dual use as bottle bags and as bags for carrying more general merchandise is therefore impossible. As such, the subject bottle bags are more akin to the bags of Totes, Inc. and those of the rulings cited above, whose fitted interior compartments spoke in favor of a specific use other than as a shopping bag of subheading 4202.92.30, HTSUS. The instant merchandise is more akin to the types of bottle bags which CBP has previously classified as "other" types of bags of subheading 4202.92.90, HTSUS. See, e.g., NY N230128, dated September 5, 2012; NY N224243, dated July 13, 2012; NY N219153, dated June 19, 2012; NY N204304, dated March 9, 2012; NY N179138, dated August 24, 2011; NY N093287, dated March 9, 2010; NY N104559, dated May 14, 2010.2 Moreover, HQ 963222, dated August 19, 1999, and HQ 960403, dated August 1, 1997, classified bottle bags similar to the merchandise at issue here as other than travel, sports, or similar bags.

Furthermore, in light of the court's conclusion in Totes, Inc. that heading 4202, HTSUS, and specific subheadings therein are eo nomine provisions, CBP found the importer's argument that the provision for "shopping bags" within heading 4202, HTSUS, is a use provision to be untenable. In addition, courts have held that "a 'use' provision is 'a provision describing articles by the manner in which they are used as opposed to by name'." See Pomeroy Collection, Ltd. v. United States, 32 C.I.T. 526, quoting Len-Ron Mfg. Co. v. United States, 334 F.3d 1304. Courts have also held that certain phrases within the provision require that it be construed as a use provision; such phrases include "to be used for," "to be used as," and "for use in." See Clarendon Mktg v. United States, 955 F.Supp 1501, (Ct. Int’l Trade 1997), aff'd 144 F.3d 1464, 1467 (Fed. Cir. 1998); Czarnikow-Rionda Co. v. United States, 66 Cust. Ct. 431, 328 F. Supp. 487 (1971), aff'd 60 C.C.P.A. 6, 468 F.2d 211 (1972); J. E. Bernard & Co., Inc. v. United States, 80 Cust. Ct. 111 (1978).

In the present case, heading 4202, HTSUS, describes its merchandise by name rather than use and does not contain any of the phrases that would indicate that it is a use provision. To the contrary, heading 4202, HTSUS, is clearly an eo nomine provision. As such, CBP found that the Carborundum factors, which the importer cited and discuss in detail, are inapplicable here. If they were applied here, the Carborundum factors would likely support use of the subject merchandise as similar to bottle cases, rather than as a general shopping bag.

Furthermore, the subject bags can be distinguished from those of the rulings counsel cites in favor of classification as "travel, sports or similar bags." Headquarters Ruling letters (HQ) 964450, dated August 8, 2002, HQ 951113, dated May 19, 1992, HQ 957917, dated July 7, 1995, HQ 950708, dated December 24, 1991, and HQ 088562, dated December 5, 1991, all classified bags without any interior pockets or compartments; these open interiors could have carried any merchandise. In HQ 963575, dated October 12, 1999, CBP classified bags with drawstrings that were specifically designed and fitted to hold a sleeping bag as "travel, sports or similar bags." These bags contained no interior compartments, but to the extent that they were fitted for specific merchandise, it was not in the same way that the subject bags are specifically fitted for multiple bottles, thereby precluding the ability to carry other articles.

As such, CBP found that the subject bags are not "travel, sports or similar bags." Therefore, CBP found that the subject bottle bags are classified in subheading 4202.92.90, HTSUS, as "Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Other: With outer surface of sheeting of plastic or of textile materials: Other: Other." This conclusion is consistent with prior CBP rulings on substantially similar merchandise. See NY N230128; NY N224243; NY N219153; NY N204304; NY N179138; NY N093287; NY N104559.

Lastly, the importer submitted laboratory results showing that the durability, volume, machine washablility, lack of lead or other toxic materials, and other characteristics are the same for the instant merchandise as they are for shopping bags. The cited laboratory results do nothing to minimize the differences between the subject bottle bags and general shopping bags. As such, these results are not relevant to our analysis. Therefore, because the subject merchandise is not described as a shopping bag of subheading 4202.92.30, HTSUS, it cannot be accorded duty-free treatment under subheading 9902.40.01, HTSUS.

Proposed Revocation Ruling Letter Relating to the Tariff Classification of An Unfinished Quilted Pillow Shell

In Binding Ruling Letter NY N236267, issued to Future Textiles Inc. of Jamesburg, New Jersey, Customs classified an unfinished quilted pillow shell in heading 9404, Harmonized Tariff Schedule of the United StatesS, specifically in subheading 9404.90.10, HTSUS, which provides for "[m]attress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered: Other: Pillows, cushions and similar furnishings: Of cotton." The rate of duty was 5.3%.

Customs has reviewed NY N236267 and has determined the ruling letter to be in error. It is now Customs's position that the unfinished quilted pillow shell is properly classified, by operation of General Rule of Interpretation 1, in heading 6307, HTSUS, specifically in subheading 6307.90.89, HTSUS, which provides for "[o]ther made up articles, including dress patterns: Other: Other: Surgical towels; cotton towels of pile or tufted construction; pillow shells, of cotton; shells for quilts, eiderdowns, comforters and similar articles of cotton." The Rate of duty will be 7%.

The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of the merchandise.

EN 94.04 states, in pertinent part, the following:

This heading covers:

. . .

(B) Articles of bedding and similar furnishing which are sprung or stuffed or internally fitted with any material (cotton, wool, horsehair, down, synthetic fibers, etc.), or are of cellular rubber or plastics (whether or not covered with woven fabric, plastics, etc.). For example:

(1) Mattresses, including mattresses with a metal frame.

(2) Quilts and bedspreads (including counterpanes, and also quilts for baby-carriages), eiderdowns and duvets (whether of down or any other filling), mattress-protectors (a kind of thin mattress placed between the mattress itself and the mattress support), bolsters, pillows, cushions, pouffes, etc.

(3) Sleeping bags.

. . . This heading also excludes :

(e) Pillow-cases, eiderdown or duvet covers (heading 63.02).

(f) Cushion covers (heading 63.04).

The quilted pillow shell in NY N236267 was not fitted with springs or internally stuffed or fitted with any material, and therefore cannot be considered an article of bedding or similar furnishing classifiable in heading 9404, HTSUS. Therefore, the quilted pillow shell is properly classified in heading 6307, HTSUS, specifically under 6307.90.8945, HTSUS, which provides for “[o]ther made up articles, including dress patterns: Other: Other: Pillow shells, of cotton (369)"

Comments must be received on or before August 18, 2017.

Tariff Classification of Flocked Doormat

In a January 16, 2016, Binding Ruling Letter (N271510) U.S. Customs and Border Protection stated the tariff classification of a flocked doormat is 5705.00.2030, Harmonized Tariff Schedule of the United States ("HTSUS"), which provides for "Other carpets and other textile floor coverings, whether or not made up: Other: Of man-made fibers." The rate of duty will be 3.3 percent ad valorem.

The doormat, which is imported from China by Big Lots Stores Inc. contains a fibrous top surface created by a 100 percent polyester flock and a crumb rubber base. The mat will measure 18 x 30 inches. It will be available in three styles. All of the mats include the word "Welcome" along with either a flower and brick design, pebble design, or large flower design.

The importer suggested classification of the subject doormats under subheading 4016.91, HTSUS, which provides for floor coverings and mats of vulcanized rubber. Were that correct the rate of duty would be 2.7%. The importer opined that as the rubber comprises the bulk of the mat's constituent material, it should be considered to impart the essential character to product. They cited New York Ruling Letter ("NYRL") 817629, dated January 11, 1996, which covered a doormat constructed of rubber and nylon flocking material, to support your position. However, the doormat covered by NYRL 817629 differs from the product at issue. The surface of this product is covered entirely by a layer of polyester flock, whereas only a portion of doormat's surface in NYRL 817629 was covered by flock. Additionally, the General Harmonized System Explanatory Notes to Chapter 40 states that the classification of rubber and textile combinations is essentially governed by Note 1(ij) to Section XI, Note 3 to Chapter 56, and Note 4 to Chapter 59, and indicates that the following products are covered by Chapter 40:

Felt impregnated, coated, covered or laminated with rubber, containing 50% or less by weight of textile material, and felt completely embedded in rubber; Nonwovens, either completely embedded in rubber 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; Textile fabrics (as defined in Note 1 to Chapter 59) impregnated, coated, covered or laminated with rubber, weighing more than 1,500 g/m2 and containing 50% or less by weight of textile material; Plates, sheets or strip of cellular rubber, combined with textile fabrics (as defined in Note 1 to Chapter 59), felt or nonwovens, where the textile is present merely for reinforcing purposes.

The doormat at issue, consisting of a layer of polyester flock adhered to a base of rubber, does not meet any of the criteria listed above as flock is a textile material, but not a textile fabric. As a result, the article cannot be classified in heading 4016.

Chapter 57, Note 1 states that the term "carpets and other textile floor coverings" means floor coverings in which textile materials serve as the exposed surface of the article when in use. As the top surface of the doormat is made from a textile flock material the item will be classified under heading 5705, HTSUS, as "other carpets and other textile floor coverings, whether or not made up." The applicable subheading for Article 810299732 will be 5705.00.2030, HTSUS, which provides for "Other carpets and other textile floor coverings, whether or not made up: Other: Of man-made fibers." The rate of duty will be 3.3 percent ad valorem.

Complexities of "Coated" Textile Provision Cause CBP Reversal of Ruling, Resulting in 13.2% Additional Duty

Customs and Border Protection ("CBP") in Customs Bulletin Vol. 48 No. 4 (January 29, 2014) announced the revocation New York Ruling Letter N238691, dated February 26, 2013, with regard to the tariff classification of polyurethane coated gloves under the Harmonized Tariff Schedule of the United States ("HTSUS"). Similarly, CBP is revoking any treatment previously accorded by CBP to substantially identical transactions. Notice of the proposed action was published in the Customs Bulletin Vol. 46, No. 35, on August 22, 2012. Two comments were received in opposition to this notice. EFFECTIVE DATE: This action is effective for merchandise entered or withdrawn from warehouse for consumption on or after March 31, 2014.

At issue was whether the subject gloves are classified in heading 3926, HTSUS, as other articles of plastic, or heading 6116, HTSUS, as gloves. The gloves are described as string-knit work gloves constructed of 50% polyethylene, 29% polyester, 14% glass fiber and 7% spandex with a polyurethane coating which covers the entire palm as well as a portion of the palmside cuff and overlaps the fingers and sides of the wearer’s hands. A polyurethane coating has also been applied to the underside fabric of the palms. The glove features an elasticized cuff and an overlock stitch finish at the cuff bottom.

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.

The HTSUS provisions under consideration are as follows:

3926: Other articles of plastics and articles of other materials of headings
3901 to 3914:
3926.20: Articles of apparel and clothing accessories (including gloves, mittens and mitts): Gloves, mittens and mitts:
3926.20.10: Seamless . . . RATE OF DUTY ZERO

* * * * *

6116: Gloves, mittens and mitts, knitted or crocheted:
6116.10: Impregnated, coated or covered with plastics or rubber:
Other:
Without fourchettes:
Other:
6116.10.55: Containing 50 percent or more by weight of cotton, man-made fibers or other textile fibers, or any combination thereof . . . . RATE OF DUTY 13.2%

* * * * *

Legal Note 1 to Section XI provides, in pertinent part: 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;

Note 2 to Chapter 39 provides as follows: 2. This chapter does not cover: (p) Goods of section XI (textiles and textile articles);

Note 2 to Chapter 59 provides, in pertinent part: 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 (emphasis added):

. . .

(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).

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Note 2(p) to Chapter 39, HTSUS, states that the Chapter does not cover goods of Section XI (textiles and textile articles). Note 1(h) to Section XI, however, excludes, inter alia, articles of knitted or crocheted fabrics coated, covered, impregnated or laminated with plastics, of Chapter 39. Although these notes would appear to conflict, Note 2 to Chapter 59, HTSUS, clarifies the scope of Chapter 39 with regard to textiles coated with plastics and sets out definitive criteria for the determination of which fabrics that have been impregnated, coated, covered, or laminated with plastics are classifiable in Chapter 39, HTSUS, at GRI 1, and thus excluded from Section XI.

Note 2(a)(3) to Chapter 59 directs the classification of textile articles in which the textile fabric is either “completely” embedded or “entirely coated or covered on both sides” by plastics to Chapter 39.

Customs found that the gloves are covered only on the inside and outside of the palmside, not including the wrist cuff, and on a portion of the backside fingers (inside and outside). The remainder of the gloves, including the entire back side, are composed of non-coated textile fabric. Thus, the gloves are only partially covered or coated with plastic and are not described by Note 2(a)(3) to Chapter 59 or heading 3926, HTSUS.

It was argued that the textile material of the instant gloves is present only for reinforcing purposes, and that the gloves should therefore be classified in Chapter 39 pursuant to Note 2(a)(5) to Chapter 39. Customs responded that the gloves are not subject to Note 2(a)(5) because they are not combined with cellular plastic. They are governed instead by Note 2(a)(3) to Chapter 59, HTSUS. In any case, however, the textile component of the instant gloves is present for more than mere reinforcement. The plastic coating may be said to reinforce the textile because it makes the textile substrate less permeable and more resistant to cuts or abrasions. However, it is meaningless to say that the textile fabric is reinforcing the plastic coating. The substrate of the gloves is entirely constructed of textile. The textile gives the gloves their form and shape, thickness, strength, etc. The textile material also provides stretch and give to the gloves, allowing them to be put on, used and removed without difficulty. In addition, the textile material, being more permeable than plastic, permits the gloves to be worn more comfortably, because it traps less perspiration than the plastic material.

Heading 6116, HTSUS, provides for gloves. Although heading 6116, HTSUS, is in Section XI, it is only the heading text which controls, not the Chapter or Section titles. Thus, heading 6116, HTSUS, is not limited to textile gloves only. Indeed, the heading text does not limit the classification of gloves of that heading by the material of their construction, only the method of construction (i.e., the glove must be knitted or crocheted). Thus, heading 6116, HTSUS, includes gloves of textiles and plastics, or textiles coated with plastics. The instant glove is made entirely of a knit textile material which is subsequently coated with plastic. At GRI 1, heading 6116, HTSUS therefore captures the merchandise in its entirety.

Even if the gloves were not excluded from Chapter 39 on the basis of Note 2(p) to that Chapter, the EN to heading 3926, HTSUS, indicates that the heading includes only plastic articles not described more specifically elsewhere in the tariff schedule. Heading 6116, HTSUS, provides for “gloves”, a considerably more specific description of the merchandise than “other article of plastic.” As the subject gloves are more specifically provided for in heading 6116, HTSUS, they are precluded from classification in heading 3926, HTSUS. Customs further noted that although subheading 3926.20, HTSUS, also provides for gloves of plastic, the instant articles must first meet the terms of the heading before we can consider the application of the accompanying subheadings. As the subject merchandise is not properly classifiable at the four digit level in heading 3926, HTSUS, it is improper to invoke subheading 3926.20, as only the four digit headings are comparable. Furthermore, subheading 6116.10, HTSUS, also provides for gloves impregnated or coated with plastics. It is therefore clear that gloves impregnated with plastics are not automatically or even primarily classified in heading 3926, HTSUS. The relevant chapter, section and explanatory notes clarify when it is appropriate to classify such merchandise in heading 3926, HTSUS—e.g., when they are coated entirely on both sides by plastic, or when the textile material is merely present for reinforcement.

For the complete CBP announcement of revocation, including full analysis, click here, beginning at page 106