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HQ 956188

December 29, 1994

CLA-2 CO:R:C:T 956188 SK


TARIFF NO.: 6216.00.5820

District Director
U.S. Customs Service
10 Causeway Street, rm. 603
Boston, MA 02222-1059

RE: Decision on Application for Further Review of Protest No. 0401-94-100104; denied; classification of ladies' glove; Stonewall Trading Company v. United States, 64 Cust. Ct. 482, C.D. 4023 (1970); subheading 6216.00.5820, HTSUSA; HRL's 082336 HRL 953182 (11/3/93); NYRL 827694 (3/3/88).

Dear Sir:

This is a decision on application for further review of a protest timely filed on February 22, 1994, by the law firm of Ross & Hardies on behalf of their client, I. Shalom & Co., against your decision regarding the classification of ladies' gloves. The protest covers two entries made at the port at Boston on August 27, 1992, and August 31, 1993. These entries were liquidated on December 3, 1993, and December 17, 1993, respectively.

Protestant also contends that with the issuance of Headquarters Ruling Letter (HRL) 951294 on August 28, 1992, Customs unlawfully violated an established and uniform practice with regard to the classification of similarly designed gloves. Protestant states that I. Shalom & Co, relied to its detriment on Customs' treatment of this type of merchandise and seeks relief pursuant to 19 CFR 177.9.

Since detrimental reliance is not a matter subject to protest, we will deal with the classification issues in this document and will respond directly to the protestant as to the detrimental reliance issue.


The subject merchandise consists of a ladies' glove, referenced style number 575-CAL, manufactured in the People's Republic of China. It is a sandwich glove with woven nylon front and palm, knit fourchettes, sidewalls and cuffs. The glove possesses "Thinsulate" insulation, three layers of foam lining on the front, vinyl and foam reinforcement along the back of the knuckles, a vinyl palm and thumb patch, a hook and clasp, and a partially elasticized wrist. A sample was submitted for Customs' examination.


1) Whether style 575-CAL is specially designed for use in sports, including skiing, so as to warrant classification within subheading 6216.00.4600, HTSUSA?

2) Whether Headquarters Ruling Letter (HRL) 951294, dated August 28, 1992, in which this office classified a glove similar in style to style 575-CAL under subheading 6216.00.5820, HTSUSA, represented an unlawful change in an established and uniform practice with regard to the classification of these types of gloves?



Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

The threshold question is whether style 575-CAL has been specially designed for use in skiing so that classification is proper under subheading 6216.00.4600, HTSUSA. Several characteristics deemed indicative of such design were enumerated in Stonewall Trading Company v. United States, 64 Cust. Ct. 482, C.D. 4023 (1970). 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 HTS subheadings) because the gloves were deemed to have been especially designed for use as ski gloves by exhibiting the following:

1) A hook and clasp to hold the gloves together;

2) 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 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.

These criteria are not prerequisites mandated of all ski gloves; rather, they provide a guideline intended to aid in determining whether 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 Customs in determining whether a glove's design merits classification as a ski glove under heading 6216, HTSUSA. See Headquarters Ruling Letter (HRL) 082336, dated November 21, 1988, in which Customs noted:

"[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."

See also HRL's 088374 and 089589, dated June 24 and August 19, 1991, respectively, in which this office held:

"the factors cited in Stonewall demonstrate prima facie that the subject merchandise is specially designed for skiing; 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."

We similarly noted in HRL 952393, dated August 28, 1992, that the Stonewall Court:

"created a rebuttable presumption that a glove possessing all four of the enumerated characteristics has been designed as a ski glove.
Customs 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.
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."

As is apparent from the above-cited rulings, Customs has consistently held that even if a glove were to possess all the features enumerated in Stonewall, it would not definitively serve to classify the glove as a ski glove. In the instant case, our examination of the subject merchandise yields the finding that while the gloves at issue may technically meet the guidelines set forth in Stonewall, (i.e., hook and clasp closure, an extra piece of vinyl reinforcement stitched across the thumb, vinyl reinforcement stitched across the knuckles, cuffs with elastic gauntlet) style 575-CAL is nevertheless ill-suited for use in skiing for several reasons. First, the glove's fourchettes, sidewalls and cuffs are constructed from knit acrylic fibers to which snow tends to adhere. This fabric easily absorbs water and allows that water to pass to the hands of the wearer. Also, the cuff and partially elasticized wrist on style 575-CAL are not sufficiently tight so as to prevent snow and water from entering the glove. Obviously, these are not acceptable characteristics for a ski glove. While neither the HTSUSA nor case law mandates that ski gloves be completely water resistant, common sense dictates that in order for a glove to be deemed as designed for use as a ski glove it must be suitable for such use. Gloves that are comprised of significant amounts of knit fabric which allow moisture to penetrate directly to the wearer's hands are not suitable for use in skiing.

It is this office's position that style 575-CAL is not classifiable as a ski glove. This style of glove is not suitable for use in skiing primarily because its loose cuff, knit fourchettes and sidewalls do not protect a skier's hands from moisture.


Section 177.10(c)(1) of the Customs Regulations (19 C.F.R. 177.10(c)(1)), reads:

"[B]efore the publication of a ruling which has the effect of changing a practice which results in the assessment of a higher rate of duty, notice that the practice (or prior ruling on which the practice is based) is under review will be published in the Federal Register and interested parties will be given an opportunity to make written submissions with respect to the correctness of the contemplated change."

See also Section 315(d), Tariff Act of 1930, as amended.

Protestant contends that prior to the issuance of HRL 951294 on August 28, 1992, Customs had an established and uniform practice with respect to the classification of gloves similar in design to style 575-CAL as ski gloves. Although protestant alleges that Customs unlawfully disregarded an established and uniform practice with regard to these types of gloves, no documentary evidence has been submitted to this office which substantiates this claim. In an effort to establish that Customs had previously classified gloves similar to style 575-CAL as ski gloves, protestant submitted a copy of New York Ruling Letter (NYRL) 827694, dated March 3, 1988 (referenced Exhibit A in protestant's submission). The submission of NYRL 827694, however, fails to establish that Customs had an established and uniform practice with regard to the classification of such gloves for two reasons. First, the gloves described in NYRL 827694 are not identical to the description of style 575-CAL set forth in the invoice referenced Exhibit C. Second, A Manual of Customs Law, by Ruth F. Sturm, (1974), at page 201, citing, inter alia, United States v. H. Reeve Angel & Co., Inc. 33 CCPA 114, C.A.D.324 (1946), cert. den. 328 U.S. 835 (1946), mandates that:

"[L]ong-continued administrative practice must be shown by positive evidence. It is not established by the rulings of one or two collectors
(ports) as to a few shipments ."

Accordingly, protestant's lone submission of NYRL 827694 does not serve to establish the existence of an established and uniform practice with regard to Style 575-CAL.

Protestant also states:

"[I]n January, 1992, the District Director confirmed that style 575
was classified as ski gloves in subheading 6216.00.46. See letter dated Jan. 27, 1992." (referenced Exhibit B).

We note that the above-referenced letter is only a confirmation from the broker (Fritz Companies) to I. Shalom & Co. of an advisory opinion by an Import Specialist. Exhibit B is not a binding classification ruling upon which reliance is justified, nor does it serve to substantiate protestant's claim that Customs had an established and uniform practice with regard to the classification of gloves substantially identical to style 575-CAL.

On August 10, 1994, Customs conducted a computer search of entries dating from January 1, 1989, to August 27, 1992, with respect to the classification of this merchandise. A preliminary search revealed that in 1990 a Customs Form (CF) 6431 was issued in which the National Import Specialist directed the ports to classify gloves virtually identical to those at issue as non-ski gloves under subheading 6216.00.5820, HTSUSA. Our computer search found that at least three ports had entered similar merchandise as non-ski gloves.

In light of these facts, gloves designed in the manner of style 575-CAL had not been subjected to an established and uniform practice of classification prior to the issuance of HRL 951294.


Style 575-CAL is classifiable under subheading 6216.00.5820, HTSUSA, which provides for, "[G]loves, mittens and mitts: other: of man-made fibers: other: with fourchettes... other... " dutiable at a rate of 22 cents per kilogram plus 11 percent ad valorem. The applicable textile quota category is 631.

Customs did not have an established and uniform practice of classifying gloves identical to style 575-CAL prior to the issuance of HRL 951294 on August 28, 1992.

As the rate of duty under the classification indicated above is the same as the rate under which the subject merchandise was entered, you are instructed to deny the protest in full. A copy of this decision should be furnished to the protestant with the CF 19 Notice of Action to satisfy the notice requirement of Section 174.30(a), Customs Regulations.

In accordance with Section 3(A)(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of these entries in accordance with this decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director
Commercial Rulings

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