CLA-2 RR:CR:TE 962999 RH
John Pellegrini, Esq.
Ross & Hardies
Park Avenue Tower
65 East 55th Street
New York, NY 10022-3219
RE: Modification of NY D88488, dated April 2, 1999; ski gloves; subheading 6216.00.0800; subheading 6216.00.3500; Stonewall Trading v. United States, 64 Cust. Ct. 482, C.D. 4023 (1970); faux fur cuffs
Dear Mr. Pellegrini:
This is in reply to your letter of May 10, 1999, on behalf of Paris Asia, Ltd., requesting review of New York Ruling Letter (NY) D88488, dated April 2, 1999, concerning the classification of gloves and mittens with faux fur cuffs.
In your letter you seek expedited treatment on your request stating that the shipment of your client's merchandise cannot occur until a determination is made as to whether or not the gloves and mittens are subject to quota restraints.
Requests for immediate consideration of a ruling letter are governed by section 177.2(d) of the Customs Regulations (19 CFR §1772(d)). The Customs Service will normally process requests for rulings in the order they are received and as expeditiously as possible. However, a request that a particular matter be given consideration ahead of its regular order is warranted only when a clear need for such treatment has been shown. In your case, although we understand that Customs determination may impact your client's business decision to import the gloves and mittens, it would be unfair to place your request ahead of other importers who face similar dilemmas. Accordingly, the request for expedited treatment is denied.
Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed modification of NY D88488 was published on September 8, 1999, in the Customs Bulletin, Volume 33, Number 35/36.
FACTS:
The merchandise at issue consists of three styles of girls' gloves and mittens. A description of the merchandise in NY D88488 reads as follows:
[Style 97-203W56 (in NY D88488 this style was incorrectly identified as 97-208W56)], is a lined and insulated girls' (sizes 4 to 6X) glove with an outershell constructed of a woven nylon fabric with an inner foam coating. The woven fabric exceeds 50% of the weight of the coated fabric. The glove features a vinyl coated fabric palm patch which extends across the thumb, heavy inner foam padding, an elasticized wrist, a hook and clasp, internal knuckle reinforcement, fourchettes and a fake fur cuff measuring approximately 2 inches in width. The presence of fake fur cuffs, which will absorb moisture, make the gloves undesirable and impractical as ski gloves. The glove will also be available as style 97-403W56 in sizes 7 to 14. The essential character of the glove is imparted by the woven man-made coated outershell material.
Style 96-204W56, is a lined and heavily foam padded girls' (sizes 4 to 6X) mitten with an outershell constructed of woven nylon fabric with an inner foam coating. The woven fabric exceeds 50% by weight of the coated fabric. The glove features a vinyl coated fabric palm patch which extends across the thumb, an elasticized wrist, a hook and clasp, internal knuckle reinforcement and a fake fur cuff measuring approximately 2 inches in width. The presence of fake fur cuffs, which will absorb moisture, make the gloves undesirable and impractical as ski gloves. The essential character of the glove is imparted by the woven man-made coated outershell material.
Customs classified the gloves (styles 97-203W56 and 97-403W56) under subheading 6216.00.2925 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides, in part, for other gloves coated with plastics or rubber, with fourchettes. The mittens (style 96-204W56) were classified under subheading 6216.00.2120, HTSUSA, which provides, in part, for other mittens coated with plastics or rubber, without fourchettes.
We note that you do not contest the classification in NY D88488 of styles 97-207W56 and 97-412W56 under subheading 6216.00.4600, HTSUSA, as ski gloves. That portion of the ruling is, therefore, affirmed.
ISSUE:
Are the gloves and mittens at issue designed for use in the sport of skiing?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI I provides that classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in order of their appearance.
You argue that the gloves and mittens in question are classifiable under the tariff provision for ski gloves of ski mittens. In the case of Stonewall Trading v. United States, 64 Cust. Ct. 482, CD 4023 (1970), decided under the Tariff Schedules of the United States, the predecessor to the Harmonized Tariff Schedule of the United States (HTSUS ), the court found that the following features, which are not present in ordinary gloves, made the gloves in that case particularly suitable for use in the sport of skiing as an aid and protection for the skier:
a) a hook and clasp that hold the gloves together, which are needed to hang them on the skier's parker when the gloves are removed;
b) an extra piece of vinyl stitched along the thumb portion to meet the stress caused by the flexing of the knuckles when the skier grips the ski pole;
c) an extra piece of red colored vinyl with padding reinforcement and inside stitching, which is securely stitched across the middle of the glove where the knuckles bend and cause stress; and
d) cuffs with an elastic gauntlet to hold the glove firm around the wrist, so as to be waterproof, and to keep it securely on the hand.
Under the TSUS, ski gloves were provided for under item 734.97, as ski equipment. Under the HTSUSA, there is an eo nomine provision for ski gloves and such articles are no longer classified as ski equipment. However, the criterion set out in Stonewall is still applicable for purposes of identifying features which are characteristic of ski gloves. See, Headquarters Ruling Letter (HQ) 083562, dated March 21, 1990, and HQ 088989, dated July 24, 1991.
In HQ 088374, dated June 24, 1991, Customs stated that the "the 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." We further stated:
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).
In HQ 088374, Customs determined that the gloves in that case were not ski gloves because the importer provided no evidence that they were principally used in or designed for the sport of skiing. Despite the fact that the gloves met all of the Stonewall criteria, several negative factors detracted from their classification as ski gloves. The gloves were largely covered in suede leather which would absorb and retain moisture, stretch out of shape and/or expand, and dry slowly which made them unsuitable for skiing. Secondly, the gloves had the overall appearance of dress gloves found in most department stores, and finally, there was no evidence of marketing or sale of the gloves as ski gloves. See also, Legal Determination (LDD) 070888, dated April 8, 1983 (An acrylic boa cuff gathers and holds snow making the gloves at issue less than waterproof and thus undesirable for use as ski equipment), and CIE 061028, dated December 13, 1979 (Gloves with acrylic boa cuffs were precluded from classification as ski gloves even though they possessed all of the Stonewall characteristics). We note that both of those decisions were decided under the TSUS.
In the instant case, the sample glove you submitted and the written description of the gloves and mittens confirm that they undoubtedly possess all of the Stonewall characteristics. The only question is whether the faux fur trim on the cuffs renders the gloves/mittens unsuitable as ski gloves or ski mittens, as held in NY D88488, LDD 07088 and CIE 061028. You argue that the fur is merely a trim and does not detract from the essential character of the gloves as ski gloves. Furthermore, you state that the fur trim will not absorb so much moisture that the gloves, which are otherwise water resistant, will become impractical for use as ski gloves. Additionally, you contend that the fur cuffs will cover the wearer's ski parka and that it is unlikely that any moisture that the cuffs might absorb will detract from the gloves practical use as ski wear.
After examining the sample glove you submitted and the criteria in Stonewall, we find that the gloves and mittens in question are specifically designed for use in the sport of skiing. The elastic around the cuff holds the gloves firmly around the wrist and, although the fur may absorb some moisture, we do not believe the fur trim will interfere with the waterproof qualities of the gloves or mittens to the extent that it would render them unsuitable for use while skiing. Moreover, we note that, although no evidence has been submitted that the gloves are specifically advertised or marketed as ski gloves, they possess all of the characteristics outlined in Stonewall.
HOLDING:
Styles 97-203W56, 97-403W56 and 96-204W56 are classifiable under subheading 6216.00.0800, HTSUSA, which provides for “Gloves, mittens and mitts: 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." They are dutiable at the general column one rate at 3.2 percent ad valorem.
Styles 97-207W and 97-412W56 remain classified under subheading 6216.00.4600, HTSUSA, as ski gloves, as stated in NY D88488. They are dutiable at the general column one rate at 4.2 percent ad valorem.
NY D88488 dated April 2, 1999, is hereby modified. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division