CLA-2 OT:RR:CTF:TCM H042544 CkG
Category: Classification
Tariff No.: 4302.29.3020; 4203.29.5000
Port Director
Customs and Border Protection 480 Welcome Center Road Swanton, VT 05488
Re: Application for Further Review of Protest No. 0201-2008-150008; Classification
of Gloves
Dear Port Director,
This is in response to Application for Further Review of Protest Number 0201-2008-150008, filed on behalf of the importer, Gordini USA, Inc.. (‘Protestant”), contesting Customs and Border Protection’s (CBP) classification and liquidation of two styles of cold-weather gloves, “Wooly Glove” and “Wooly Mitt” under subheading 4203.29.1500 of the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise at issue is identified as styles Wooly Glove and Wooly Mitt. The Wooly Glove is a lined and insulated glove, composed of pig suede leather on the palm side, from fingertips to wrist, and a fleece blend of 70% polyester/ 30% acrylic knit on the backside, including the extended gauntlet cuff. Pig suede leather also makes up the fourchettes and sidewalls of the glove. The pig suede material covering the palm and fourchettes is treated with water-repellent. Other features include a partially elasticized wrist cuff with an adjustable draw cord, additional padding along the backside knuckles, and a hook and clasp. No sample of style Wooly Mitt was provided, but it appears from the submitted materials that it is similar in construction to the Wooly Glove.
The protest describes four entries on October 24, 2007, November 28, 2007, December 5, 2007, and January 17, 2008 of “Wooly Glove and Wooly Mitt” gloves, entered under subheading 4203.21.60, HTSUS, which provides for: “Articles of apparel and clothing accessories of leather or of composition leather: Gloves, mittens and mitts: Specially designed for use in sports: Ski or snowmobile gloves, mittens and mitts: Other.” On April 18, 2008, CBP liquidated the subject articles under subheading 4203.29.15, HTSUS, which provides for “other” gloves and mitts of leather.
ISSUE:
Whether the instant merchandise is classified as a glove or mitten specially designed for use in sports pursuant to subheading 4203.21, HTSUS, or as “other” gloves or mittens of subheading 4203.29, HTSUS.
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 October 24, 2007. (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.
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:
4203: Articles of apparel and clothing accessories, of leather or of composition leather:
Gloves, mittens and mitts:
4203.21: Specially designed for use in sports:
Ski or snowmobile gloves, mittens and mitts:
4203.21.60: Other….
4203.29: Other:
Gloves of horsehide or cowhide (except calfskin) leather
Other:
4203.29.15: With fourchettes or sidewalls which, at a minimum, extend from fingertip to fingertip between each of the four fingers….
Other:
4203.29.30: Men's
4203.29.30: Lined
4203.29.50: For other persons: Lined
* * * * * * * *
At GRI 1, there is no dispute that the instant merchandise is classified in heading 4203, HTSUS. The issue arises at the six-digit subheading 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 six-digit subheading level, you request classification of the subject articles as gloves or mitts specially designed for use in sport, principally skiing. For articles governed by principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such 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.
With regard to the proper classification of ski gloves, the court in Stonewall Trading Company v. United States, Cust. Ct. 482, C.D. 4023 (1970) held that ski gloves possessing the following features were specially designed for use in the sport of skiing:
A hook and clasp to hold the gloves together;
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 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.
The Stonewall criteria are used as a guideline to aid in the classification of sports gloves and mittens, but they are neither mandatory nor all-inclusive in determining whether a glove merits classification under this provision. A case by case analysis will be used by CBP in determining whether a glove's design merits classification as a ski glove under headings 6116 or 6216, HTSUS. See Headquarters Ruling Letter (HQ) 954733, dated December 21, 1993; HQ 089589, dated August 19, 1991. Even if the Stonewall criteria are met, a glove is not classifiable as a ski glove if it is not functionally practicable for such use. See HQ 952393, dated August 28, 1992; HQ 953629, dated Jul 8, 1993. In addition to the Stonewall criteria outlined above, CBP consistently considers the protective features of a glove (e.g., resistance to wind and water) and how
the gloves are advertised and sold. See e.g., HQ 956188, dated December 29, 1994; HQ 954425, dated September 10, 1993; HQ 953629, dated Jul 8, 1993; and HQ 088374, dated June 24, 1991.
The gloves in this case meet three of the four Stonewall criteria; the hook and clasp, reinforcement of the knuckles, and elastic cuffs. As noted above, the absence of a Stonewall criteria—in this case, the lack of specific reinforcement of the thumb—does not preclude classification of the gloves as specially designed for skiing. However, the glove does not appear to satisfy the additional criteria noted above—water resistance, nor marketing and sale as a ski glove.
The material of the glove is not, in and of itself, water-resistant; although the leather is treated with a water repellant, the acrylic/polyester backside is not, and both suede leather and fleece are materials that easily absorb water. Gloves with similar characteristics have been deemed unsuitable for use in skiing for this reason. See e.g., HQ 953629, dated July 8, 1993; HQ 954425, dated September 10, 1993; HQ 951985, dated September 4, 1992; HQ 951295, dated August 28, 1992; HQ 088374, dated June 24, 1991; and NY F80473, dated December 14, 1999.
HQ 953629, for example, featured two styles of gloves with an additional plastic insert or an inner waterproof barrier, and yet found that due to the tendency of snow to adhere to the acrylic material of the glove, the additional feature (not present in the subject articles) did not render the glove sufficiently water resistant. HQ 088374 further observed that suede leather was not particularly well suited for a ski glove:
Both glove styles are largely covered in sueded leather, a material primarily used and associated with dress gloves; suede will absorb and retain moisture, stretch out of shape and/or expand, and dry slowly, which makes it highly unsuitable to the sport of skiing where contact with snow is a characteristic occurrence; treatment of the skins with a water-repellent chemical may protect such gloves from minor contact with the elements but does not transform these gloves into gloves specially designed for use in skiing.
The use of suede to reinforce the palm in order to provide better grip and texture, on the other hand, has been held to constitute a useful feature of ski gloves where the glove had other, sufficient water-resistant properties. See HQ 954733, dated December 21, 1991, in which gloves with additional inner linings of Gore-Tex, foam, and thinsulate were classified as ski gloves.
In the instant case, the water-repellant material on the palm prevents, to a limited extent, the absorption of water by the suede leather. This may be sufficient for brief contact with snow. The back of the glove, however, absorbs significantly more moisture, enough to render the inside of the glove somewhat cold and a trifle damp.
Finally, the environment of sale provides little support for the importer’s position. No evidence of marketing or sale of these gloves as ski gloves was provided; instead, the submitted catalog displays the gloves in the Chapter titled “Gloves and Mitts Multisport”, which implies that these gloves are intended for use in a variety of cold weather sports, and are not specifically designed for use as ski gloves. Information from independent retailers further supports this conclusion; three different sites in fact provide the following (identical) description of the Gordini Wooly Glove: “The Gordini Woolly Glove is your all-activity glove, great for everyday things like walking the dog and putting your ski rack on. The Berber shell and suede palm, fingers and thumb patch will keep your fingers and hands warm and cozy. Insulated with Megaloft and a Micro denier Hydrowick liner which holds the heat while allowing moisture to move away from the skin.” http://www.outdoorgearpages.com/outdoor-gear-apparel/mens-gloves/gordini-wooly-glove-unisex.html ; http://www.bentgear.com/index.php?manufacturers_id=75; http://bereadywear.com/?p=739. Accordingly, the Wooly Glove and Mitt are not "specially designed" for use in a particular sport, including skiing. The Wooly Glove and Mitt are thus classified in subheading 4203.29, HTSUS. Because the palmside material is made of pig suede leather and not cowhide or horsehide leather, the subject merchandise is classified in subheadings 4203.29.30 and 4203.29.50, HTSUS, as “other” gloves and mitts of leather.
HOLDING:
Pursuant to GRI 6, styles Wooly Glove and Wooly Mitt (men’s) are classified in subheading 4203.29.30, HTSUS, providing for “Articles of apparel and clothing accessories of leather or of composition leather: Gloves, mittens and mitts: Other: Other: Men’s: Lined”. The 2009 column one, general rate of duty is 14% ad valorem. Styles Wooly Glove and Wooly Mitt (women’s) are classified in subheading 4203.29.50, as “Articles of apparel and clothing accessories of leather or of composition leather: Gloves, mittens and mitts: Other: Other: For other persons: Lined”. The 2009 column one, general rate of duty is 12.6% ad valorem.
You are instructed to deny the protest, except to the extent that reclassification of the merchandise as indicated above results in a partial allowance. In accordance with the Protest/Petition Processing Handbook (CIS HB, June 2002, pp. 18 and 21), 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