There seems to have been an uptick in Canada Border Services Agency audits concerning the tariff classification of gloves, carrying costly consequences to potential importers not based on what their product is, but how it is used by their customers!
This is a function of the wonderful world of tariff classification, some of the complexities of which we tackled in a previous blog, here.
The chief issue is whether imported gloves will be used “with protective suits in a noxious atmosphere” or whether they will be used in other circumstances/places which CBSA does not consider a “noxious atmosphere” (e.g. nail salons, restaurants, etc.).
During a verification CBSA generally asks for evidence that the gloves associated with certain sample importations were used in a noxious atmosphere as required by the tariff classification. As importers are typically several levels of trade removed from end users, it can be difficult to collect and provide such evidence.
Detailed Description of Subject Goods and “Noxious Atmosphere”
The ideal tariff item (4015.09.10) of the gloves being audited are as follows:
Articles of apparel and clothing accessories (including gloves, mittens and mitts), for all purposes, of vulcanized rubber other than hard rubber. - Gloves, mittens and mitts: - Other - Protective gloves to be employed with protective suits in a noxious atmosphere.
CBSA Memorandum D10-15-26 set out the CBSA’s view of a “noxious atmosphere” which they define to include both life-threatening environments legally necessitating the wearing of special protective apparel, and those environments “potentially harmful to life, injurious to health and/or fatal”, examples of which include a medical or other healthcare environment contaminated with microorganisms harmful to a person’s health.
Why Do I Care?
Firstly, not all apparel worn for protective purposes is covered by the tariff item above – for example some forms of personal protective equipment (“PPE”) may be more specifically classified elsewhere.
Secondly, the CBSA’s approach (supported by caselaw) has been to require the importer provide proof that the goods “will be employed with protective suits in a noxious atmosphere”. Canadian importers have to establish an evidentiary chain between their importation and the intended end use of the gloves – often requiring the importer reach out to its customers, and their customers.
Marshalling this evidence at the outset of a CBSA verification is vital given CBSA appeals are “pay-to-play” (as we blogged about here) – meaning potential appellants must first pay (or provide security for) the assessed amounts in dispute. Additionally, the evidentiary burden on the importer on the initial CBSA verification is usually limited to a small number of sample transactions, whereas on appeal the importer would have to provide evidence with respect to each importation under appeal.
Takeaways
Importers of these gloves need to take proactive steps to establish the evidentiary chain linking the use of their goods with their own supply if they wish to retain duty-free status!