CLA-2 CO:R:C:T 088989
District Director of Customs
300 South Ferry Street, Room 2017
Terminal Island
Los Angeles, California 90731
RE: Decision on Application for Further Review of P. R. D.
2704-90-002581; Snow Board Gloves; Heading 6216;
Omnibus Budget Reconciliation Act of 1990
Dear Sir:
This protest was filed against your decision in the
liquidation of entries covering certain sports gloves imported
from South Korea. A sample, Style 4591/1, was submitted with the
protest.
FACTS:
The instant merchandise, Style 4591/1, is a lined, full
finger, snowboard glove with an outer shell made of sections of
woven man-made fabric and "Kevlar," an aramid fiber fabric. The
palm, fourchettes, sidewall, thumb and finger tips are made of
"Kevlar." A thin plastic coating is visible on the inside of
the "Kevlar."
A fabric backed vinyl reinforcement with additional foam
padding is sewn across the knuckles. A fabric backed vinyl
reinforcement is sewn under the palm and the thumb. A 2-3/4 inch
by 1-1/2 inch protective piece of hard plastic is sewn under the
heel of the palm.
On the front of the glove sample submitted to Headquarters
is a triangular piece of material containing the words "Snow
Boards."
The gloves also feature an extended gauntlet which may be
tightened by a hook and loop closure. A clasp and hook fastener
is also located on the gauntlet.
The entries were liquidated under the provision for
gloves...impregnated, coated or covered with plastics or rubber:
other: with fourchettes...specially designed for use in sports,
in subheading 6216.00.3005, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA). (We note that the statistical
suffix of this tariff provision has been changed since the
protest was filed.)
ISSUE:
(1) Would the instant gloves be classified as ski gloves in
subheading 6216.00.44, HTSUSA, or as other gloves specially
designed for use in sports in subheading 6216.00.30, HTSUSA?
(2) What effect do the amendments passed by the Omnibus
Budget Reconciliation Act of 1990 have upon the classification of
these gloves?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRIs), taken
in order. GRI 1 provides that classification shall be according
to the terms of the headings and any relative section or chapter
notes.
Regardless of whether the gloves are classified as ski
gloves or as other gloves specially designed for use in sports,
they are classified in Heading 6216, HTSUSA. This is not a
question of which heading applies, but of which subheading.
GRI 2 (b), HTSUSA, provides that goods consisting of more
than one material or substance shall be classified according to
the principles of GRI 3. GRI 3 (b) reads, in part:
Mixtures, composite goods consisting of different materials
or made up of different components...which cannot be
classified by reference to GRI 3 (a), shall be classified as
if they consisted of the material or component which gives
them their essential character....
Customs Headquarters has consistently ruled that the
essential character of gloves is imparted by the material used
in the construction of the palm side. In most cases it is this
part of the glove which is the more important. The palm side must
be designed to withstand wear, afford protection, and provide a
sure grip. The role of the back of the hand is secondary in all
but a few gloves. In view of this rationale, the plastic coated
"Kevlar" portion of this glove provides the essential character
of the glove.
The next question to be decided is whether the snowboard
gloves are designed for use in the sport of skiing or whether
they are more properly classified under the general provision for
other gloves specially designed for use in sports.
The broker representing the protestant contends that the
instant gloves are classified under the provision for ski gloves
of man-made fibers: not impregnated, coated or covered with
plastics or rubber: specially designed for use in sports, in
subheading 6216.00.44, HTSUSA, for the following reasons:
(1) The instant gloves have reinforced palm and thumb
of vinyl, on the inside of the glove;
(2) They have a velcro closure on the cuff;
(3) They have a hook and eye clasp;
(4) They have foam padding on back of the knuckles
which is over 5 millimeters thick;
(5) They have knuckles reinforced with vinyl on the
inside of the glove;
(6) They have no flared gauntlets.
Stonewall Trading Company v. United States, 64 Cust. Ct.482,
C. D. 4023 (1970) held that certain gloves were classified under
the provision for other ski equipment in item 734.97, TSUS
(which was later changed to item 735.06, TSUS). The court held
that gloves possessing the following characteristics were
classified as other ski equipment:
(1) a hook and clasp to 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 grasped the ski
pole;
(3) an extra piece of vinyl with padding
reinforcement and inside stitching, which is
stitched securely across the middle of the glove
where the knuckles bend and cause stress;
(4) cuffs with an elastic gauntlet to hold the gloves
firm around the wrists, so as to be waterproof,
and to keep them securely on the hands.
The requirement that a glove be specially designed for
skiing means that the protestant must demonstrate to the
satisfaction of Customs that the gloves are specially designed
for use in skiing. See Customs Headquarters Ruling Letter (HRL)
086880 of June 12, 1990.
The instant gloves are clearly labeled as "Snow Boards."
They also have a piece of hard plastic sewn under the heel of the
palm. This piece of plastic is intended to cushion the wearer's
hand when it comes into contact with the snow as well as to help
absorb impact on the palm. Despite the broker's contentions, we
find that these factors are sufficient to distinguish the instant
gloves from skiing gloves. We find, therefore, that the instant
gloves would previously have been classified as other gloves
specially designed for use in sports in subheading 6216.00.3005,
HTSUSA.
HOLDING:
The subject gloves were correctly classified as gloves
impregnated, coated, or covered with plastics...specially
designed for use in sports, in subheading 6216.00.3005, HTSUSA,
dutiable at the rate of 14 percent ad valorem. Due to changes
made by the Omnibus Budget Reconciliation Act of 1990 (hereafter
the "Omnibus Act"), the gloves would currently be classified
under the provision for other gloves: impregnated, coated or
covered with plastics or rubber: other gloves... specially
designed for sports, including ski and snowmobile gloves, in
subheading 6216.00.0800, HTSUSA, dutiable at the rate of 5.5
percent ad valorem. This change is retroactive to entries made
after December 31, 1988 and before October 1, 1990, if a proper
request for reliquidation was filed by the importer prior to
April 1, 1991. There is no evidence in the file (including the
protest) to indicate that the protestant has requested
reliquidation of the subject entry pursuant to the Omnibus Act
under subheading 6216.00.0800, HTSUSA. In the absence of such a
request, the protest should be denied in full.
A copy of this decision should be sent to the protestant
along with the Customs Form 19, Notice of Action.
Sincerely,
John Durant, Director
Commercial Rulings Division