CLA-2-62:OT:RR:NC:N3:354
Ms. Amy Johannesen
Cerny Associates, P.C.
Attorneys At Law
24 Smith Street
Building 2, Suite 102
Pawling, New York 12564
RE: The tariff classification of gloves from China.
Dear Ms. Johannesen:
In your letter dated May 12, 2011, you requested a tariff classification ruling, on behalf of your client, Marmot Mountain, LLC. The samples submitted will be returned.
You state that the “Glide Softshell Glove” comes in two styles (#15410 for men’s sizes and #18370 for women’s sizes) and is designed for spring skiing. The glove is constructed of Marmot’s M2 softshell fabric, a proprietary bonded fabric composed of a face layer of 88% nylon 12% elastane woven fabric bonded to a knit 100% polyester fleece backing layer which serves as the glove’s lining. A portion of the palm is reinforced with a backed polyurethane material, while the palm-side fingers and thumb are printed with a thermoplastic polyurethane matrix. The glove also features fourchettes, an elasticized wrist, a textile wrist strap on the backside that is secured by a hook and loop fastener, a hook and clasp, the letters “Marmot” embroidered on the backside center and capping along the bottom. The essential character of the gloves is imparted by the woven fabric of the outershell.
The “Evolution Glove (Style #1636), which you state is designed for cross country skiing, is constructed of Marmot’s knit M1 100% polyester softshell fabric, a micro-porous fabric utilizing Gore Windstopper® technology. The glove features a goatskin leather palm overlay that extends up the palmside of the index finger as well as overlays of the same material on the upper portion of the thumb and on the upper portion of the middle, ring and little fingers which overlaps to the backside top portion of those fingers. Additional features include fourchettes, sidewalls, pre-curved fingers, the letters “Marmot” embroidered on the back of the cuff, an elasticized wrist, a hook and clasp and a hemmed bottom. The essential character of the glove is imparted by the knit fabric of the outershell.
CBP has recognized that certain glove features are indicative of a special design for skiing. In considering whether gloves have a special design for skiing, CBP has consistently referenced Stonewall Trading Company v. United States, 64 Cust. Ct. 482, C.D. 4023 (1970) as a guideline. See e.g., HQ 082336, dated November 21, 1988, HQ 085642, HQ 088386, HQ 089769, HQ 089589, dated August 19, 1991, and HQ 953629, dated July 8, 1993. 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 subheadings in the HTSUSA) because the gloves were deemed to have been specially designed for use as ski gloves because they had the following features:
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; An extra piece of vinyl with padding reinforcement and an inside stitching which is securely stitched across the middle of the glove where the knuckles bend and cause stress; and 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 important to recognize that these criteria are not prerequisites mandated of all ski gloves. Rather, they provide a guideline intended to aid in determining whether certain 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 CBP in determining whether a glove's design merits classification as a ski glove. See HQ 082336, in which CBP stated that, "[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." In HQ 951294, dated August 28, 1992, CBP elaborated, stating, "[w]e further note that even if a glove were to possess all the features enumerated [as the gloves in Stonewall], it would not definitively serve to classify the glove as a ski glove; a glove may possess all these features and still be deemed unacceptable for use as a ski glove."
The Stonewall Court created a rebuttable presumption that a glove possessing all four of the enumerated characteristics has been designed as a ski glove. See HQ 951294 and HQ 953629. CBP 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. In other words, 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. See HQ 951294 and HQ 953629.
Although you assert that Styles #15410, #18370 and #1636 are ski gloves, there are negative factors which preclude classification as such. The gloves lack the following:
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;
An extra piece of vinyl with padding reinforcement and inside stitching which securely stitched across the middle of the glove where the knuckles bend and cause stress.
Based on the foregoing analysis, we cannot agree with your position that the gloves are designed for use in the sport of snow skiing. We consider these styles to be cold weather gloves.
You state that the “Windstopper Glove” comes in two styles (#1816 for men’s sizes and #1818 for women’s sizes) and is designed for cross country skiing. The glove is constructed of 100% polyester knit Gore Windstopper® fleece, which you indicate is “a technically unique water resistant fabric, which is completely different from common, plain fleece, in that it is a three-ply single fabric which incorporates between two layers of specialty fleece, a bonded membrane designed to preclude wind penetration and ensure water resistance while enhancing breathability and the wicking away of moisture”. The glove features a goatskin leather palm overlay that extends across the thumb crotch and up the palmside of the thumb as well as overlays of the same material on the top portion of the forefinger and middle finger which overlaps to their top backside. Additional features include fourchettes, pre-curved fingers, the letters “Marmot” embroidered on the backside, an elasticized wrist, a hook and clasp and a hemmed bottom. The essential character of the glove is imparted by the knit fabric of the outershell. The cumulation of features shows designs for the use in cross country skiing.
The applicable subheading for Styles #15410 and #18370 will be 6216.00.5820, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Gloves, mittens, mitts: Other: Of man-made fibers: Other: With fourchettes…Other. The rate of duty will be 20.7¢/kg + 10.4% ad valorem.
The applicable subheading for Style #1636 will be 6116.93.9400, Harmonized Tariff Schedule of the United States (HTS), which provides for Gloves, mittens and mitts, knitted or crocheted: other: of synthetic fibers: other: other: with fourchettes. The duty rate will be 18.6 percent ad valorem.
The applicable subheading for Styles #1816 and #1818 will be 6116.93.0800, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Gloves, mittens and mitts, knitted or crocheted: other: of synthetic fibers: other gloves, mittens and mitts, all foregoing specially designed for use in sports, including ski and snowmobile gloves, mittens and mitts. The rate of duty will be 2.8 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Robert Ivers at (646) 733-3054.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division