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HQ 950803


April 16, 1992

CLA-2 CO:R:C:F 950803 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.20.4050

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.

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.

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.

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.

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

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