CLA-2 CO:R:C:F 950803 LPF
Area Director
U.S. Customs Service
JFK Airport, Bldg. 178
Jamaica, NY 11430
RE: Decision on Application for Further Review of Protest No.
1001-1-002595, filed March 26, 1991, concerning
classification of children's vinyl mittens.
Dear Sir:
This is a decision on a protest filed March 26, 1991 against
your decision in the classification of children's vinyl mittens
liquidated December 28, 1990.
FACTS:
The protestant entered the merchandise, imported from Hong
Kong, under subheading 3926.20.1050, Harmonized Tariff Schedule
of the United States Annotated (HTSUSA), as "Other articles of
plastics and articles of other materials of headings 3901 to
3914: Articles of apparel and clothing accessories (including
gloves): Gloves: Seamless, Other: Other," at the general column
one rate of duty of 3.7 percent ad valorem.
You classified the merchandise under subheading 3926.20.40,
as "Other articles of plastics and articles of other materials of
headings 3901 to 3914: Articles of apparel and clothing
accessories (including gloves): Gloves: Other: Other," at the
general column one rate of duty of 14 percent ad valorem.
Protestant claims the merchandise should be classified under
subheading 3926.20.3000 as "Other articles of plastics and
articles of other materials of headings 3901 to 3914: Articles of
apparel and clothing accessories (including gloves): Gloves:
Other: Specially designed for use in sports: Other," at the
general column one rate of duty of 3 percent ad valorem.
-2-
The merchandise at issue, styles 2882-10 and 3283-10, are
vinyl mittens designed for toddlers and children. From the
information provided, we assume both styles are of the same
design and construction. You submitted a sample of the
children's boxing glove-styled mitten which includes a polyvinyl
chloride (PVC) outer shell, with cotton knitted backing, and
features an inset thumb, a 1/3 elasticized wrist and a hook and
clasp. Two parallel rows, each containing six metal eyelets,
extend from the center of the palm to the wrist and are laced-
up. A 2-3/8 inch by 1-1/2 inch fabric label with the word
EVERLAST is sewn to the back-side of the wrist. The lining
consists of knit backed cellular foam. An additional foam layer
is sewn between the liner and the shell on the back side of the
hand.
ISSUE:
Whether the vinyl mittens are classifiable in subheading
3926.20.3000 as other articles of plastics, articles of apparel
and clothing accessories, gloves, specially designed for use in
sports, or in subheading 3926.20.4050 as other articles of
plastics, articles of apparel and clothing accessories, gloves,
other, other.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA. The majority of imported goods are
classified by application of GRI 1, that is, 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 GRI's may
then be applied.
All concerned parties agree that the merchandise is
classifiable in heading 3926 as other articles of plastics and,
further, in subheading 3926.20, as articles of apparel and
clothing accessories (including gloves). The point of contention
is whether the merchandise is classifiable in subheading
3926.20.3000 as gloves specially designed for use in sports, or
in subheading 3926.20.4050 as other gloves. According to GRI 6,
the GRI's, section notes and chapter notes pertain to subheadings
in the same manner as they apply to headings.
-3-
Classification of the subject merchandise rests on its
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). In Stonewall, the court concluded that
certain gloves, with the following characteristics, were
classifiable under the ski equipment provisions of the Tariff
Schedule of the United States (TSUS):
1. A hook and clasp to hold the glove 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 grasps 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;
4. Cuffs with an elastic gauntlet to hold the gloves firm
around the wrist, so as to be waterproof, and to keep it
securely on the hand.
It is Customs position that the presence of the four
Stonewall criteria in a glove demonstrates, prima facie, that the
subject merchandise is specially designed for skiing. However,
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.
In this regard, the protestant contends that the mittens at
issue satisfy elements one, three and four as enumerated in the
Stonewall decision. Although it appears the mittens satisfy
element one (hook and clasp to hold mittens together) and element
four (elastic gauntlet to hold the gloves firm around the wrist,
so as to be waterproof), it does not appear that the merchandise
satisfies elements two or three.
The protestant contends that criterion three is satisfied
(extra piece of vinyl with padding reinforcement and inside
stitching at the knuckle area) by the extra vinyl foam padding
between the insert and shell across the knuckle area, which is
stitched to another piece of insulated padding. The vinyl foam
padding, however, is not unique to the knuckle area, but rather
is found throughout the mitten. Thus, it does not qualify as an
"extra piece" of vinyl with padding reinforcement. Although some
reinforcement is apparent in the knuckle area, it is not
sufficient to satisfy criterion three.
-4-
Moreover, the protestant submits that although criterion two
is not satisfied (extra piece of vinyl along thumb portion for
reinforcement) this should not prevent classification of the
merchandise within the ski glove provision. Protestant believes,
that since the mittens are designed for use by children, and the
stress caused by the flexing and gripping of a child is
considerably less than that of an adult, that padding which would
be insufficient for an adult's mitten may be sufficient for a
child's mitten. In the past, Customs has not distinguished
between gloves or mittens designed for use by children as opposed
to adults. In fact, children are capable of participating in the
sport of skiing in the same manner as adults. See Headquarter's
Ruling Letter (HRL) 068636. Thus, the Stonewall criteria applies
equally to gloves or mittens whether designed for children or
adults. Although failure to meet this and other criteria does
not preclude classification of the merchandise as a ski glove, it
does serve as indicia that the merchandise is not designed for
skiing.
Additionally, the language of Stonewall must be interpreted
in conjunction with the design for use of the manufactured
articles. See HRL 089589, issued August 19, 1991, citing Sport
Industries, Inc. v. United States, 65 Cust. Ct. 470, C.D. 4125
(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. Accordingly, negative design features as well as
contradictory marketing information may preclude classification
of merchandise as a ski glove. See HRL 089589, issued August 19,
1991. In essence, an importer must make a showing to the
satisfaction of Customs that the gloves are, in fact, specially
designed for use in skiing. See HRL 086880, issued June 12,
1990.
Contrary to the position espoused by the protestant, the
design and marketing of the mitten do not unequivocally establish
that the merchandise is purchased, sold and used as ski mittens.
The mitten's boxing glove design as well as the clear plastic
packaging depicting a boxing ring with the description, "boxing
ski mitten," indicate that the mitten is not necessarily designed
and marketed for use in skiing. The merchandise apparently is
designed and marketed to appeal to children interested in boxing
and may be used either to simulate the sport of boxing during
play, or for comfort or warmth in cold weather.
Furthermore, the lace-up closure with its metal eyelets,
constitutes a negative feature in a glove or mitten supposedly
designed for use in skiing. It allows cold air, snow and wetness
into the glove and may become loosened or untied while skiing.
The uneven surface created by the laces and eyelets also
interferes with one's grip of the ski poles.
-5-
For these reasons, and without an adequate showing of
evidence by the protestant that the mittens are specially
designed for use in skiing, the merchandise is not classifiable
as a ski glove. Likewise, the protestant has not shown that the
mittens are designed for use in any other sport. Therefore, the
mitten is classifiable in subheading 3926.20.4050 as a glove
other than those specially designed for use in sports.
HOLDING:
The vinyl mittens are classifiable in subheading
3926.20.4050, HTSUSA, as "Other articles of plastics and articles
of other materials of headings 3901 to 3914: Articles of apparel
and clothing accessories (including gloves): Gloves: Other:
Other, Other." The general column one rate of duty is 14 percent
ad valorem.
The protest should be denied in full. A copy of this
decision with the Form 19 should be sent to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division