CLA-2 OT:RR:CTF:TCM H033515 CKG
Category: Classification
Tariff No.: 6116.10.0800
Port Director
Port of Champlain
U.S. Customs and Border Protection
237 West Service Road Champlain, NY 12919
Re: Application for Further Review of Protest No. 0712-08-100194; Classification of
Snowboarding Gloves
Dear Port Director,
This is in response to your memo dated June 26, 2008, forwarding Application for Further Review of Protest Number 0712-08-100194 filed on behalf of the importer, Burton Corp. (‘Protestant”), contesting Customs and Border Protection’s (CBP) classification and liquidation of a pair of “Gore Mitt” mittens, styles B89271 and B89272 under subheading 6116.10.44 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Gloves, mittens and mitts, knitted or crocheted: Other: Containing over 50 percent by weight of plastics or rubber.”
FACTS:
The subject articles are lined and insulated “Gore Mitt” mittens sold with removable inner gloves. They are identified as styles B89271 and B89272. The outer shell is made up of a water repellant woven polyester/cotton fabric. The palm and the inside and sides of the thumb are composed of a knit nylon/spandex fabric with a PVC coating on the outer surface. The outer side of the thumb is comprised of a woven polyurethane fabric and serves as a goggle wipe. The mittens’ inner layer consists of fleeced fabric and polyester fiberfill insulation. The mittens feature an extended gauntlet with an elastic draw cord, an adjustable textile strap at the back of the wrist, a hook and clasp, a small zippered mesh pocket on the outer knuckle area, and a snap to join the gloves together. The inner removable glove made of 100% polyester knit fabric.
The merchandise was entered on August 23, 2007, in subheading 6116.10.08, HTSUS, which provides for knitted or crocheted mittens specially designed for use in sports. CBP liquidated the mittens on January 11, 2008, in subheading 6116.10.44, HTSUS, which provides for “other” gloves containing over 50 percent by weight of plastics or rubber. Protestant filed the instant protest on June 13, 2008, contesting CBP’s classification of the subject merchandise in subheading 6116.10.44, HTSUS. Protestant does not dispute the classification of the inner liner in subheading 6116.10.75, HTSUS.
ISSUE:
Whether the “Gore Mitt” mittens are classifiable in subheading 6116.10.08, as knitted or crocheted mittens specially designed for use in sports, or in subheading 6116.10.44, as “other” knitted or crocheted mittens.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 2704-2007-102287 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a prior CBP ruling with respect to the same or substantially similar merchandise. Specifically, Protestant cites to New York Ruling Letters (NY) C81133, dated November 4, 1997, PD E84007, dated July 28, 1999, and NY A85959, dated August 1, 1996.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 GRIs 2 through 6 may then be applied in order.
The HTSUS Provisions at issue are as follows:
6116: Gloves, mittens and mitts, knitted or crocheted
6116.10: Impregnated, coated or covered with plastics or rubber
6116.10.08: Other gloves, mittens and mitts, all the foregoing specially designed for use in sports, including ski and snowmobile gloves, mittens and mitts:
Other:
6116.10.44: Containing over 50 percent by weight of plastics or rubber….
* * * * * * * *
At GRI 1, there is no dispute that the instant merchandise is classified in subheading 6116.10, HTSUS. The issue arises at the eight-digit, national tariff rate level. Therefore, we begin the analysis using GRI 6. The issue is whether, at GRI 6, the mittens are classifiable as mittens specially designed for use in sports or as “other” gloves or mittens. GRI 6, HTSUS, requires that the GRI's be applied at the subheading level on the understanding that only subheadings at the same level are comparable. The GRI's apply in the same manner when comparing subheadings within a heading.
At the eight-digit subheading level, you request classification of the subject articles as gloves specially designed for use in sport, principally skiing. Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, the principal use "is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use." In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.
While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the CIT has provided factors which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum).
In Sports Industries, Inc. v. United States, 65 Cust. Ct. 470, C.D. 4125 (1970), 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. A conclusion that a certain glove is "specially designed" for a particular sport requires more than a mere determination of whether the glove or pair of gloves could possibly be used while engaged in that sport. See HQ 965714, dated November 15, 2002; HQ 965157, dated May 14, 2002. To determine whether an article is specially designed for a specific sport requires consideration of whether the article has particular features that adapt it for the stated purpose.
The general physical characteristics of the Gore-Mitt mittens evidence a design specific to snowboarding; the textured palm grip, the elastic cuffs, gauntlet and draw cord to prevent snow entering the glove, the water-repellent fabric of the outer shell, the removable and waterproof inner glove, and finally, the goggle wipe all suggest cold-weather sports as the principal use for the subject article. Furthermore, this style is sold and marketed not only by the importer but by numerous independent retailers as a snowboarding glove, including outdoor sporting goods stores such as altrec.com, backountry.com, or snowboards-for-sale.com. Finally, the importer, Burton Corp., sells primarily snowboarding supplies. We thus conclude that the subject mittens are principally designed for use in sports, specifically snowboarding, and are thus classifiable in subheading 6116.10.08, HTSUS.
HOLDING:
Pursuant to GRI 6, the subject article is classified under subheading 6116.10.08, which provides for “Gloves, mittens and mitts, knitted or crocheted: Other gloves, mittens and mitts, all the foregoing specially designed for use in sports, including ski and snowmobile gloves, mittens and mitts.” The 2009 column one, general rate of duty is 2.8% ad valorem.
Since reclassification will result in a lower duty rate, you are instructed to allow the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director,
Commercial and Trade Facilitation Division