HQ 088374
June 24,1991
CLA-2 CO:R:C:T 088374 JS
John M. Peterson
Neville, Peterson & Williams
39 Broadway
New York, NY 10006
RE: Gloves; essential character leather; classifiable heading
4203, gloves of horsehide or cowhide; not specially designed
for use in skiing
Dear Mr. Peterson:
This is in reference to your letters of November 2 and 7,
1990, on behalf of Aris-Isotoner, Inc., requesting classification
of two styles of gloves under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA). A subsequent letter dated
March 27, 1991, regarding advertising material for the relevant
merchandise was also submitted.
FACTS:
Glove style no. 70903, the subject of your November 2
letter, is a suede and textile glove which is to be manufactured
in the Philippines. The sample provided is a full fingered,
lined glove which has a suede covered back of the hand and a
suede leather palm. The sidewalls, fourchettes and applied cuff
are constructed from acrylic knit fabric. The lining consists of
an outer layer of plastic foam sewn to an inner layer of cotton
knit material. A 4 x 2 inch piece of fabric backed vinyl is
secured underneath the suede across the knuckle area. Fabric
backed vinyl is also found on the underside of the thumb and
across the palm. The glove also features a partially elasticized
wrist and a hook and clasp.
The subject of your November 7 letter was glove style no.
70605, which is a full fingered, lined glove with suede leather
on the palm and the palm side of the fingers and thumb. The back
of the hand and the fourchettes are constructed of man-made fiber
knit material with suede leather strips overlaid along the
fingers and two suede chevrons on the back of the hand. The man-
made fiber knit lining has an additional layer of knit backed
wadding on the back of the hand side. A 2 1/2 x 4 inch piece of
2
fabric backed vinyl is secured underneath the knit material,
along the inside of the thumb and across the palm. Additionally,
the glove has a partially elasticized cuff and a hook and clasp.
You assert that both styles of gloves are of leather,
specially designed for cross country ski use, and will be sold
and marketed as ski gloves. Your letter of March 27, however,
states that no promotional catalogues, pamphlets or other such
literature has been published with regard to the sale of this
merchandise as ski gloves. The only marketing evidence provided
was point-of-sale advertising in the form of a hang-tag (a sample
of which was provided) which has the words ARIS SKI GLOVES
printed on its face. We note that the hang-tag lacks a style no.
reference. You also state that Aris generally sells its
merchandise to department store and other buyers during showroom
sales sessions through general catalogues. Sales to general, low
or middle-tiered department stores across the country was
confirmed in a conference held at Customs Headquarters with you
on March 12, 1991. Your letter also confirms that all sueded
leather will be treated with a water-repellent chemical.
ISSUE:
Are the gloves at issue specially designed for use in the
sport of skiing.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI), taken
in order. GRI 1 provides that classification shall be in
accordance with the terms of the heading and any relevant section
or chapter notes. Where goods cannot be classified solely on the
basis of GRI 1, and if the heading and legal notes do not
otherwise require, the remaining GRI may be applied, in the order
of their appearance.
Since the gloves at issue are made of both leather and
textile materials, which are classifiable under separate headings
in the nomenclature, we must determine essential character under
GRI 3(b):
(b) Mixtures, composite goods consisting of different
materials or made up of different components...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.
Explanatory Note VIII to GRI 3(b) states that:
3
The factor which determines essential character will vary as
between different kinds of goods. It may, for example, be
determined by the nature of the material or component, its
bulk, quantity, weight or value, or by the role of a
constituent material in relation to the use of the goods.
With respect to whether the textile knit or leather portions
impart the essential character to the gloves, we note that in
both instances, the primary surface areas are covered with
leather. Style no. 70903's entire back and palm is made of
leather, with only fourchettes and a rib-knit cuff made of
acrylic knit. These last two areas are virtually out of sight
when the glove is worn, since the cuff becomes enveloped under
the sleeve of a jacket or coat, and the fourchettes are difficult
to view unless the fingers are spread. Style no. 70605 has a
full leather palm and distinctive leather strips which have
become a trademark. Therefore, it is Customs view that these
goods must be classified as leather gloves.
The proposed classification of these gloves rests on their
apparent satisfaction of the requirements for ski gloves set
forth in Stonewall Trading Company v. United States, 64 Cust. Ct.
482, C.D. 4023 (1970). Nonetheless, we believe that presence of
the four Stonewall criteria in a glove is not the sole and final
determination of a ski glove. As your letter points out, we have
recognized only that the factors cited in Stonewall demonstrate
prima facie that the subject merchandise is specially designed
for skiing; failure of a glove to meet all of the Stonewall
criteria will not prevent its classification as a ski glove, nor
will satisfaction of the criteria automatically dictate
classification as a ski glove.
Instead, the language of Stonewall must be interpreted in
conjunction with the design for use of the manufactured articles,
an analysis consistent with precedent and mindful of advances in
the ski glove industry (HQ 082336, issued November 21,
1988)(citing Sport Industries, Inc. v. United States (1970),
where the court, in interpreting the term "designed for use,"
examined not only the features of the articles but also the
materials selected and the marketing, advertising, and sale of
the article).
Since the subheading for leather ski gloves, HTS 4203.21 is
a use provision, it is important to consider the glove as a
whole to determine its use as a ski glove. In the present
instance, despite evidence of each of the Stonewall requirements
in both gloves, several negative factors detract from
classification of these gloves as ski gloves:
4
1) Both glove styles are largely covered in sueded
leather, a material primarily used and associated with
dress gloves; suede will absorb and retain moisture,
stretch out of shape and/or expand, and dry slowly,
which makes it highly unsuitable to the sport of skiing
where contact with snow is a characteristic occurance;
treatment of the skins with a water-repellent chemical
may protect such gloves from minor contact with the
elements but does not transform these gloves into gloves
specially designed for use in skiing.
2) The overall appearance of these gloves indicate their
similarity to the gloves sold as cold weather or dress
gloves in most department stores; they are both
relatively stream-lined and lack the bulk and rugged trim
common to ski gloves. One style is black, the other is
brown; these are the two colors most often utililized for
men's dress gloves, whereas ski gloves are typically
bright and/or multicolored.
3) No evidence of marketing or sale of these gloves as ski
gloves was provided. On the contrary, it was confirmed
that these goods are distributed to national chain
department stores, rather than ski shops or similar
retailers. The hang tag provided does not identify
the style no. of the gloves being labeled, and does not
otherwise advertise use of the gloves for skiing other
than to include the word "ski."
For the reasons stated above, and in the absence of definitive
evidence that these gloves are principally used in or specially
designed for the sport of skiing, these gloves may not be
classified as ski or cross-country ski gloves.
HOLDING:
The merchandise at issue, style nos. 70903 and 70605 are
classified under subheading 4203.29.1500, which provides for
gloves, mittens and mitts: other: gloves of horsehide or cowhide
(except calfskin) leather: other: with fourchettes or sidewalls
which, at a minimum, extend from fingertip to fingertip between
each of the four fingers, dutiable at the rate of 14 percent ad
valorem per dozen pairs.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
5
restraint (quota/visa) categories, the importer should contact
the local Customs office prior to importation of this merchandise
to determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division