HQ 088386

May 31, 1991

CLA-2 CO:R:C:G 088386 DFC

CATEGORY: Classification

TARIFF NO.: 6216.00.4600

District Director of Customs

909 First Ave, Rm 2039

Seattle Va. 98174

RE: Decision on Application for Further Review of

Protest No. 3001-90-101324

Dear Sir:

This protest was filed against your amended Notice

of Redelivery dated November 2, 1990, against entry no.

XXX-XXXXXXXX dated October 16, 1990, covering a shipment of

gloves manufactured in Korea.

FACTS:

The \"brown camouflage\" gloves involved, style 44, were

entered on October 16, 1990, under subheading 6216.00.4400,

Harmonized Tariff Schedule of the United States Annotated

(HTSUSA), as gloves, mittens and mitts, other, of man-made

fibers, ski or snowmobile gloves, mittens and mitts, with duty at

the rate of 5.5 percent ad valorem.

Upon examination of a sample of the style involved your

office determined that the gloves were not ski gloves for tariff

purposes. As a result an amended DF 4647 dated November 2, 1990,

was issued stating that the gloves were not admissible in the

absence of a quota textile visa in Category 631 and were

classifiable under subheading 6216.00.4945, HTSUSA, as gloves,

mittens and mitts, other, of man-made fibers, other, with duty at

the rate of 22 cents/Kg plus 11 percent ad valorem.

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However, it should be noted that Congress passed technical

amendments to the Customs and Trade Act of 1990 (P.L. 101-382)

which were signed into law by the President on November 5, 1990.

Among these amendments subheading 6216.00.4400, HTSUSA, under

which the gloves in issue were entered, was redesignated as

subheading 6216.00.4600, HTSUSA, and amended to read as follows:

\"Other gloves, mittens, and mitts, all

the foregoing specially designed for

use in sports, including ski and

snowmobile gloves, mittens, and mitts\"

This amendment applied with respect to the \"brown

camouflage\" gloves entered or withdrawn from warehouse for

consumption on or after October 1, 1990.

It should be noted that neither subheading 6216.00.4400,

HTSUSA, under which the gloves were claimed to be classifiable,

nor the new subheading 6216.00.4600, HTSUSA, was or is subject to

quota restraints or visa requirements.

ISSUE:

Are the gloves specially designed for use in the sport of

skiing?

LAW AND ANALYSIS:

The rationale expressed for the position that these gloves

are not ski gloves for tariff purposes is as follows:

Our position on this issue is that the

importer must demonstrate that the gloves

are principally used in skiing. Evidence

such as sales, marketing strategies and

advertisements to support his claim of

ski glove should be furnished. The burden

of proof is on the importer. In HQ 085561

dated 12-6-89 on a X-country ski glove

headquarters stated upon examination of

this glove and its use, proven and advertised,

Customs believes that the merchandise at issue

will be principally used in cross-country skiing.\'

In HQ 082421 dated 7-25-90 HQ stated . . . the

presence of the features set forth in Stonewall

does not mandate he conclusion that a glove

is specially designed for use in skiing.\'

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It also appears that style 44 gloves were not considered

ski gloves because they do not belong to a class or kind of

glove recognized as a ski glove.

It should be noted that the amended provision for ski

gloves is not a use provision, but rather is a \"specially

designed for use\" provision. Consequently, there is no need

to show that the gloves are principally used in the sport of

skiing.

The classic case with respect to whether gloves are

specially designed for use in the sport of skiing is Stonewall

Trading company v. United States, 64 Cust., Ct., 482, CD 4023

(1970). In that case the gloves involved were found to

possess the following features which were characteristic of

ski gloves, rendering them specially designed for use in the

sport of skiing.

\(1\) a hook and clasp that hold the gloves

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

grips 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; and

\(4\) cuffs with an elastic gauntlet to hold the

glove firmly around the wrist, so as to be

waterproof, and to keep it securely on the hand.

An examination of a sample gloves, which you state are

similar in all material respects to style 44, persuades us that

they are clearly designed for use in the sport of skiing and

meet the criteria set forth above for being considered ski

gloves for tariff purposes.

Headquarters Ruling Letter (HRL) 085561 cited as precedent

for not considering the instant gloves as ski gloves is

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not relevant because cross country ski gloves have never

been subject to the same four features as \"normal\" downhill

gloves. Additionally, HRL 082421 also cited as precedent for

not considering the instant gloves as ski gloves is cited

correctly, but goes on to conclude that \"\]a\[s soon as one of

the necessary features is absent, we must decide whether the

gloves in fact are specially designed for use in the sport of

skiing.\"

It is our position that the color of the gloves is

not germane to their classification. It should be noted

that the gloves which were the subject of HRL 085642 dated

October 17, 1989, were camouflage gloves although that was

not stated. Those gloves were classified as ski gloves.

You have informed us that these gloves sometimes have a

\"hunter\" tag attached. The importer states that the \"hunter\"

tag is used on all types of their gloves. It is our view

that the presence of the \"hunter\" tag on these gloves does

not preclude classification as ski gloves in this instance

because the gloves have been found to be \"specially designed

for use in the sport of skiing.\"

HOLDING:

The camouflage gloves, style 44, are classifiable under

subheading 6216.00.46, HTSUS.

The protest should be allowed in full. Inasmuch as the

gloves are not subject to quota restraints or visa

requirements, you should withdraw your Notice of Redelivery.

A copy of this decision should be attached to your Form 19

Notice of Action to be sent to the protestant.

Sincerely,

John Durant, Director

Commercial Rulings Division