CLA-2 CO:R:C:G 088386 DFC
District Director of Customs
909 First Ave, Rm 2039
Seattle Va. 98174
RE: Decision on Application for Further Review of
Protest No. 3001-90-101324
Dear Sir:
This protest was filed against your amended Notice
of Redelivery dated November 2, 1990, against entry no.
XXX-XXXXXXXX dated October 16, 1990, covering a shipment of
gloves manufactured in Korea.
FACTS:
The "brown camouflage" gloves involved, style 44, were
entered on October 16, 1990, under subheading 6216.00.4400,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), as gloves, mittens and mitts, other, of man-made
fibers, ski or snowmobile gloves, mittens and mitts, with duty at
the rate of 5.5 percent ad valorem.
Upon examination of a sample of the style involved your
office determined that the gloves were not ski gloves for tariff
purposes. As a result an amended DF 4647 dated November 2, 1990,
was issued stating that the gloves were not admissible in the
absence of a quota textile visa in Category 631 and were
classifiable under subheading 6216.00.4945, HTSUSA, as gloves,
mittens and mitts, other, of man-made fibers, other, with duty at
the rate of 22 cents/Kg plus 11 percent ad valorem.
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However, it should be noted that Congress passed technical
amendments to the Customs and Trade Act of 1990 (P.L. 101-382)
which were signed into law by the President on November 5, 1990.
Among these amendments subheading 6216.00.4400, HTSUSA, under
which the gloves in issue were entered, was redesignated as
subheading 6216.00.4600, HTSUSA, and amended to read as follows:
"Other gloves, mittens, and mitts, all
the foregoing specially designed for
use in sports, including ski and
snowmobile gloves, mittens, and mitts"
This amendment applied with respect to the "brown
camouflage" gloves entered or withdrawn from warehouse for
consumption on or after October 1, 1990.
It should be noted that neither subheading 6216.00.4400,
HTSUSA, under which the gloves were claimed to be classifiable,
nor the new subheading 6216.00.4600, HTSUSA, was or is subject to
quota restraints or visa requirements.
ISSUE:
Are the gloves specially designed for use in the sport of
skiing?
LAW AND ANALYSIS:
The rationale expressed for the position that these gloves
are not ski gloves for tariff purposes is as follows:
Our position on this issue is that the
importer must demonstrate that the gloves
are principally used in skiing. Evidence
such as sales, marketing strategies and
advertisements to support his claim of
ski glove should be furnished. The burden
of proof is on the importer. In HQ 085561
dated 12-6-89 on a X-country ski glove
headquarters stated upon examination of
this glove and its use, proven and advertised,
Customs believes that the merchandise at issue
will be principally used in cross-country skiing.'
In HQ 082421 dated 7-25-90 HQ stated . . . the
presence of the features set forth in Stonewall
does not mandate he conclusion that a glove
is specially designed for use in skiing.'
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It also appears that style 44 gloves were not considered
ski gloves because they do not belong to a class or kind of
glove recognized as a ski glove.
It should be noted that the amended provision for ski
gloves is not a use provision, but rather is a "specially
designed for use" provision. Consequently, there is no need
to show that the gloves are principally used in the sport of
skiing.
The classic case with respect to whether gloves are
specially designed for use in the sport of skiing is Stonewall
Trading company v. United States, 64 Cust., Ct., 482, CD 4023
(1970). In that case the gloves involved were found to
possess the following features which were characteristic of
ski gloves, rendering them specially designed for use in the
sport of skiing.
(1) a hook and clasp that hold the gloves
together;
(2) 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;
(3) an extra piece of 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
(4) cuffs with an elastic gauntlet to hold the
glove firmly around the wrist, so as to be
waterproof, and to keep it securely on the hand.
An examination of a sample gloves, which you state are
similar in all material respects to style 44, persuades us that
they are clearly designed for use in the sport of skiing and
meet the criteria set forth above for being considered ski
gloves for tariff purposes.
Headquarters Ruling Letter (HRL) 085561 cited as precedent
for not considering the instant gloves as ski gloves is
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not relevant because cross country ski gloves have never
been subject to the same four features as "normal" downhill
gloves. Additionally, HRL 082421 also cited as precedent for
not considering the instant gloves as ski gloves is cited
correctly, but goes on to conclude that "]a[s soon as one of
the necessary features is absent, we must decide whether the
gloves in fact are specially designed for use in the sport of
skiing."
It is our position that the color of the gloves is
not germane to their classification. It should be noted
that the gloves which were the subject of HRL 085642 dated
October 17, 1989, were camouflage gloves although that was
not stated. Those gloves were classified as ski gloves.
You have informed us that these gloves sometimes have a
"hunter" tag attached. The importer states that the "hunter"
tag is used on all types of their gloves. It is our view
that the presence of the "hunter" tag on these gloves does
not preclude classification as ski gloves in this instance
because the gloves have been found to be "specially designed
for use in the sport of skiing."
HOLDING:
The camouflage gloves, style 44, are classifiable under
subheading 6216.00.46, HTSUS.
The protest should be allowed in full. Inasmuch as the
gloves are not subject to quota restraints or visa
requirements, you should withdraw your Notice of Redelivery.
A copy of this decision should be attached to your Form 19
Notice of Action to be sent to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division