CLA-2 CO:R:C:T 956188 SK
District Director
U.S. Customs Service
10 Causeway Street, rm. 603
Boston, MA 02222-1059
RE: Decision on Application for Further Review of Protest No.
0401-94-100104; denied; classification of ladies' glove;
Stonewall Trading Company v. United States, 64 Cust. Ct. 482,
C.D. 4023 (1970); subheading 6216.00.5820, HTSUSA; HRL's 082336
(11/21/88); 088374 (6/24/91); 089589 (8/19/91); 951294 (8/28/92);
HRL 953182 (11/3/93); NYRL 827694 (3/3/88).
Dear Sir:
This is a decision on application for further review of a
protest timely filed on February 22, 1994, by the law firm of
Ross & Hardies on behalf of their client, I. Shalom & Co.,
against your decision regarding the classification of ladies'
gloves. The protest covers two entries made at the port at
Boston on August 27, 1992, and August 31, 1993. These entries
were liquidated on December 3, 1993, and December 17, 1993,
respectively.
Protestant also contends that with the issuance of
Headquarters Ruling Letter (HRL) 951294 on August 28, 1992,
Customs unlawfully violated an established and uniform practice
with regard to the classification of similarly designed gloves.
Protestant states that I. Shalom & Co, relied to its detriment on
Customs' treatment of this type of merchandise and seeks relief
pursuant to 19 CFR 177.9.
Since detrimental reliance is not a matter subject to
protest, we will deal with the classification issues in this
document and will respond directly to the protestant as to the
detrimental reliance issue.
FACTS:
The subject merchandise consists of a ladies' glove,
referenced style number 575-CAL, manufactured in the People's
Republic of China. It is a sandwich glove with woven nylon front
and palm, knit fourchettes, sidewalls and cuffs. The glove
possesses "Thinsulate" insulation, three layers of foam lining on
the front, vinyl and foam reinforcement along the back of the
knuckles, a vinyl palm and thumb patch, a hook and clasp, and a
partially elasticized wrist. A sample was submitted for
Customs' examination.
ISSUES:
1) Whether style 575-CAL is specially designed for use in sports,
including skiing, so as to warrant classification within
subheading 6216.00.4600, HTSUSA?
2) Whether Headquarters Ruling Letter (HRL) 951294, dated August
28, 1992, in which this office classified a glove similar
in style to style 575-CAL under subheading 6216.00.5820,
HTSUSA, represented an unlawful change in an established and
uniform practice with regard to the classification of
these types of gloves?
LAW AND ANALYSIS:
-CLASSIFICATION -
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes, taken in
order. Merchandise that cannot be classified in accordance with
GRI 1 is to be classified in accordance with subsequent GRI's.
The threshold question is whether style 575-CAL has been
specially designed for use in skiing so that classification is
proper under subheading 6216.00.4600, HTSUSA. Several
characteristics deemed indicative of such design were enumerated
in Stonewall Trading Company v. United States, 64 Cust. Ct. 482,
C.D. 4023 (1970). In Stonewall, the Court held
that certain vinyl gloves were classifiable as "other ski
equipment" in item 734.97, TSUS, (now provided for in various HTS
subheadings) because the gloves were deemed to have been
especially designed for use as ski gloves by exhibiting the
following:
1) A hook and clasp to hold the gloves together;
2) An extra piece of vinyl stitched along the thumb 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
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.
These criteria are not prerequisites mandated of all ski
gloves; rather, they provide a guideline intended to aid in
determining whether gloves have been designed for use in skiing.
These criteria are neither mandatory, nor all-inclusive, and a
case by case analysis will be used by Customs in determining
whether a glove's design merits classification as a ski glove
under heading 6216, HTSUSA. See Headquarters Ruling Letter (HRL)
082336, dated November 21, 1988, in which Customs noted:
"[t]he fact that the court found certain gloves to be
classifiable as
other ski equipment cannot be construed as either a
limitation or as
a blanket approval for any gloves that possess such [the
same] features."
See also HRL's 088374 and 089589, dated June 24 and August 19,
1991, respectively, in which this office held:
"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."
We similarly noted in HRL 952393, dated August 28, 1992, that the
Stonewall Court:
"created a rebuttable presumption that a glove possessing
all four
of the enumerated characteristics has been designed as a ski
glove.
Customs may consider other factors which effectively refute
this
presumption. Such factors may include whether the gloves
are
functionally practicable for use in skiing, whether the
gloves
appear suitable for use in skiing, and whether the gloves
are
marketed as ski gloves. While a glove's appearance, and the
manner in which it is marketed, are certainly indicators of
classification, it is the glove's suitability for use in
skiing that is
determinative of whether classification as a ski glove is
proper.
Even if the Stonewall characteristics have been met, a glove
is not
classifiable as a ski glove if it is not functionally
practicable for use
as such."
As is apparent from the above-cited rulings, Customs has
consistently held that even if a glove were to possess all the
features enumerated in Stonewall, it would not definitively serve
to classify the glove as a ski glove. In the instant case, our
examination of the subject merchandise yields the finding that
while the gloves at issue may technically meet the guidelines set
forth in Stonewall, (i.e., hook and clasp closure, an extra piece
of vinyl reinforcement stitched across the thumb, vinyl
reinforcement stitched across the knuckles, cuffs with elastic
gauntlet) style 575-CAL is nevertheless ill-suited for use in
skiing for
several reasons. First, the glove's fourchettes, sidewalls and
cuffs are constructed from knit
acrylic fibers to which snow tends to adhere. This fabric easily
absorbs water and allows that water to pass to the hands of the
wearer. Also, the cuff and partially elasticized wrist on style
575-CAL are not sufficiently tight so as to prevent snow and
water from entering the glove. Obviously, these are not
acceptable characteristics for a ski glove. While neither the
HTSUSA nor case law mandates that ski gloves be completely water
resistant, common sense dictates that in order for a glove to be
deemed as designed for use as a ski glove it must be suitable for
such use. Gloves that are comprised of significant amounts of
knit fabric which allow moisture to penetrate directly to the
wearer's hands are not suitable for use in skiing.
It is this office's position that style 575-CAL is not
classifiable as a ski glove. This style of glove is not suitable
for use in skiing primarily because its loose cuff, knit
fourchettes and sidewalls do not protect a skier's hands from
moisture.
- ESTABLISHED AND UNIFORM PRACTICE -
Section 177.10(c)(1) of the Customs Regulations (19 C.F.R.
177.10(c)(1)), reads:
"[B]efore the publication of a ruling which has the
effect of changing
a practice which results in the assessment of a higher
rate of duty,
notice that the practice (or prior ruling on which the
practice is based)
is under review will be published in the Federal
Register and interested
parties will be given an opportunity to make written
submissions with
respect to the correctness of the contemplated change."
See also Section 315(d), Tariff Act of 1930, as amended.
Protestant contends that prior to the issuance of HRL 951294
on August 28, 1992, Customs had an established and uniform
practice with respect to the classification of gloves similar in
design to style 575-CAL as ski gloves. Although protestant
alleges that Customs unlawfully disregarded an established and
uniform practice with regard to these types of gloves, no
documentary evidence has been submitted to this office which
substantiates this claim. In an effort to establish that
Customs had previously classified gloves similar to style 575-CAL
as ski gloves, protestant submitted a copy of New York Ruling
Letter (NYRL) 827694, dated March 3, 1988 (referenced Exhibit A
in protestant's submission). The submission of NYRL 827694,
however, fails to establish that Customs had an established and
uniform practice with regard to the classification of such gloves
for two reasons. First, the gloves described in NYRL 827694 are
not identical to the description of style 575-CAL set forth in
the invoice referenced Exhibit C. Second, A Manual of Customs
Law, by Ruth F. Sturm, (1974), at page 201, citing, inter alia,
United States v. H. Reeve Angel & Co., Inc. 33 CCPA 114,
C.A.D.324 (1946), cert. den. 328 U.S. 835 (1946), mandates that:
"[L]ong-continued administrative practice must be shown
by positive
evidence. It is not established by the rulings of one
or two collectors
(ports) as to a few shipments ."
Accordingly, protestant's lone submission of NYRL 827694 does not
serve to establish the existence of an established and uniform
practice with regard to Style 575-CAL.
Protestant also states:
"[I]n January, 1992, the District Director confirmed that
style 575
was classified as ski gloves in subheading 6216.00.46. See
letter
dated Jan. 27, 1992." (referenced Exhibit B).
We note that the above-referenced letter is only a confirmation
from the broker (Fritz Companies) to I. Shalom & Co. of an
advisory opinion by an Import Specialist. Exhibit B is not a
binding classification ruling upon which reliance is justified,
nor does it serve to substantiate protestant's claim that Customs
had an established and uniform practice with regard to the
classification of gloves substantially identical to style 575-CAL.
On August 10, 1994, Customs conducted a computer search of
entries dating from January 1, 1989, to August 27, 1992, with
respect to the classification of this merchandise. A preliminary
search revealed that in 1990 a Customs Form (CF) 6431 was issued
in which the National Import Specialist directed the ports to
classify gloves virtually identical to those at issue as non-ski
gloves under subheading 6216.00.5820, HTSUSA. Our computer
search found that at least three ports had entered similar
merchandise as non-ski gloves.
In light of these facts, gloves designed in the manner of
style 575-CAL had not been subjected to an established and
uniform practice of classification prior to the issuance of HRL
951294.
HOLDING:
Style 575-CAL is classifiable under subheading 6216.00.5820,
HTSUSA, which provides for, "[G]loves, mittens and mitts: other:
of man-made fibers: other: with fourchettes... other... "
dutiable at a rate of 22 cents per kilogram plus 11 percent ad
valorem. The applicable textile quota category is 631.
Customs did not have an established and uniform practice of
classifying gloves identical to style 575-CAL prior to the
issuance of HRL 951294 on August 28, 1992.
As the rate of duty under the classification indicated above
is the same as the rate under which the subject merchandise was
entered, you are instructed to deny the protest in full. A copy
of this decision should be furnished to the protestant with the
CF 19 Notice of Action to satisfy the notice requirement of
Section 174.30(a), Customs Regulations.
In accordance with Section 3(A)(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of these entries in accordance with this
decision must be accomplished prior to mailing of the decision.
Sixty days from the date of the decision the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and the public via the Diskette Subscription Service, Freedom
of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings
Division