July 17, 2009 CBP Bulletin Notice on Classification of Cold Weather Sports Gloves

Proposed modification of rulings; proposed revocation of treatment. CBP is proposing to modify three rulings on the classification of sports gloves. Additionally, CBP proposes that this notice covers any rulings on this merchandise that may exist but have not been specifically identified. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.

CBP states that any party who has received an interpretive ruling or decision on the merchandise that is subject to the proposed modifications and revocation, or any party involved with a substantially identical transaction, should advise CBP by August 16, 2009, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.

Cold weather sports gloves. The merchandise consists of four types of cold weather sport gloves (see bulletin for information on the 17 style numbers.) The FREERIDE line of gloves is designed for skiing and are lined and insulated gloves with palmside of over 90% goatskin leather, inner waterproof barrier, inner cuff and outer gauntlet cuff. The ASCENT line Glissade series is designed for mountaineering, alpine climbing or use in winter environments where breathability and temperature control are crucial, and are lined and insulated gloves with a palmside of over 90% goatskin leather, inner waterproof barrier, inner cuff and outer gauntlet cuff. The LINER series, Windweight are described as comfortable fitted gloves that can be used on their own or with the ASCENT line, and are made up of 100% polyester knit fabric featuring a breathable wind stopper membrane, with a leather overlay patch on the palmside covering a portion of the base of the index finger and thumb, and a partially elasticized wrist. The LINER series, Stormweight are described as unisex gloves/liners made of 100% polyester knit fabric featuring a breathable wind stopper membrane, with a goatskin leather overlay covering the palmside, and a partially elasticized wrist.

CBP is proposing to issue HQ H055387 in order to modify NY N042400, NY N042401 and N042402 and reclassify the gloves as follows:

The FREERIDE line of gloves will be classified under HTS 4203.21.60 as "gloves of leather for use in sports, ski gloves," rather than under 4203.29 as "other gloves of leather" or 4203.21.8060 as "other gloves of leather for use in sports." (See bulletin for specifics and style numbers.)

The ASCENT line "Glissade" series of gloves will be classified under HTS 4203.21.80 as "other gloves of leather for use in sports, other," rather than under HTS 4203.29 as "other gloves of leather."

The LINER series "Windweight" gloves will be classified under HTS 6116.93.08 as "gloves of synthetic fibers, specially designed for use in sports, including ski and snowmobile gloves" rather than HTS 6116.93.94 as "other gloves of synthetic fibers", and the LINER series "Stormweight" gloves will be classified under HTS 4203.21.80 as "gloves of leather for use in sports, other" rather than under HTS 4203.29 as "other gloves of leather."

CBP proposes these changes as a reconsideration based on prior rulings and court cases interpreting the term ''designed for use," as well as the proper classification of ski gloves.

In Sports Industries, Inc. v. United States, 65 Cust. Ct. 470, C.D. 4125 (1970), 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. A conclusion that a certain glove is ''specially designed'' for a particular sport requires more than a mere determination of whether the glove or pair of gloves could possibly be used while engaged in that sport. To determine whether an article is specially designed for a specific sport requires consideration of whether the article has particular features that adapt it for the stated purpose.

With regard to the proper classification of ski gloves, the court in Stonewall Trading Company v. United States, Cust. Ct. 482, C.D. 4023 (1970) held that ski gloves possessing the following features were specially designed for use in the sport of skiing:

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 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.

The Stonewallcriteria are used as a guideline to aid in the classification of sports gloves and mittens, but they are neither mandatory nor all inclusive in determining whether a glove merits classification under this provision. CBP uses a case by case analysis in determining whether a glove's design merits classification as a ski glove. Even if the Stonewallcriteria are met, a glove is not classifiable as a ski glove if it is not functionally practicable for such use. In addition to the Stonewallcriteria outlined above, CBP consistently considers the protective features of a glove (e.g., resistance to wind and water) and how the gloves are advertised and sold.

The general physical characteristics of the FREERIDE line gloves evidence a design specific to skiing. This is demonstrated by the gloves' incorporation of such components as Gore-Tex and Primaloft insulation, the elasticized wrists with a drawstring tightener and extended gauntlet cuff which effectively keep moisture out, the use of leather palm reinforcement which enables a more secure grip than does plastic, the nose wipe on the backside thumb and the overall sturdy appearance and sound workmanship. Furthermore, the environment of sale of the gloves indicates that they are specially designed for use in skiing.

The ASCENT line Glissade series gloves are described in the catalog as ''designed for general mountaineering, alpine climbing, or use in winter environments where breathability and temperature regulation are crucial.'' Like the ski gloves in the FREERIDE line, the Glissade series gloves feature an elasticized wrist, a hook and clasp, an extended gauntlet cuff with drawstring tightener, and reinforced stitching along the thumb portion. Due to the lack of sufficient evidence demonstrating that the Glissade glove is designed, marketed or sold as a ski glove, CBP proposes it should be classified as other gloves specially designed for use in sports.

The catalog does not indicate that the LINER series Windweight and Stormweight styles have a specialized design for use in skiing. Both gloves are constructed primarily of knit polyester fleece. CBP has previously deemed gloves of knit fabric to be unsuitable for use in skiing due to the tendency of the fabric to retain and absorb moisture and dry slowly, as well as the tendency of snow to adhere to such fabric. Furthermore, the partially elasticized wrists of both liner styles do not provide a sufficiently tight seal against snow and water, particularly given the absence of a drawstring tightener or additional knit cuff. The Windweight gloves only feature an overlay on the tip of the palmside thumb, index and middle fingers. The polyester fleece on the remainder of the palmside and the rest of the glove remains uncovered. The leather overlay on the palmside of the Stormweight gloves, on the other hand, provides for greater water protection and a surer grip, extending from the fingertips to the wrist. Due to the heightened protection and surer grip that the palmside material provides on the Stormweight glove as well as the marketing indicating it is designed with runners, hikers and skiers in mind, CBP proposes the Stormweight glove should be classified as ''gloves, mittens and mitts of leather: specially designed for use in sports: other.'' The Windweight glove is specially designed, marketed and sold for use in climbing and mountaineering. CBP proposes it should be classified in HTS subheading 6116.93.08, as knit gloves specially designed for use in sports.

CBP now proposes that by application of GRI 3, the FREERIDE line of gloves are classified in subheading 4203.21.60, which provides for: "Articles of apparel and clothing accessories, of leather or of composition leather: Gloves, mittens and mitts: Specially designed for use in sports: Ski or snowmobile gloves, mittens and mitts: Other. " The ASCENT line Glissade series gloves are classified in subheading 4203.21.80, which provides for: "Articles of apparel and clothing accessories, of leather or of composition leather: Gloves, mittens and mitts: Specially designed for use in sports: Other." The Windweight gloves are classified in 6116.93.08, which provides for: "Gloves, mittens and mitts, knitted or crocheted: Other: Of synthetic fibers: Other gloves, mittens and mitts, all the foregoing specially designed for use in sports, including ski and snowmobile gloves, mittens and mitts." The Stormweight gloves are classified in subheading 4203.21.80, which provides for: "Articles of apparel and clothing accessories, of leather or of composition leather: Gloves, mittens and mitts: Specially designed for use in sports: Other."

FREERIDE line - Proposed: 4203.21.60, 5.5%, Current: 4203.21.8060, 4.9%

ASCENT Glissade series - Proposed: 4203.21.80, 4.9%; Current: 4203.29.3020, 14% (men's), or 4203.29.5000, 12.6% (other than men's)

Windweight - Proposed: 6116.93.08, 2.8%; Current: 6116.93.94, 18.6%

Stormweight - Proposed: 4203.21.80, 4.9%; Current: 4203.29.40, 12.6%

July 17, 2009 CBP Bulletin (Vol. 43, No. 28) available athttp://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2009/