December 10, 2009 CBP Bulletin Notice on the Classification of Ski Mittens
In the December 10, 2009 issue of the U.S. Customs and Border Protection Bulletin and Decisions (Vol. 43, No. 50), CBP published a notice proposing to modify a ruling and revocation of treatment as follows:
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Proposed modification of ruling; proposed revocation of treatment. CBP is proposing to modify a ruling on the classification of certain ski mittens. 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 revocation, or any party involved with a substantially identical transaction, should advise CBP by January 11, 2010, the date the 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.
Ski Mittens. The merchandise at issue is described as a pair of unisex ski mittens that are lined and insulated with removable inner gloves, style SU9196, called "Titanium Castle Mountain Mitten". The majority of the palm side of the outer mitten, and the top portion of the thumb, are made up of a coated polyester knit fabric. A knit fabric insert with a visible coating on the underside makes up the bottom portion of the thumb. The backside of the mitten and sidewalls are made up of a coated woven nylon material, and the back-side of the thumb is made of a PU suede material that functions as a nose wipe.
The mittens feature a plastic goggle wipe on the right mitten, an inner waterproof barrier, a hook and clasp to connect the mittens together, 2mm of polyurethane inner foam, an additional layer of foam padding and textile-backed vinyl which extends internally across the back of the knuckles, and an extended gauntlet cuff. The partially elasticized wrists feature a draw cord tightening at the back of the hand with a locking end clip. An adjustable draw cord also tightens the gauntlet hem, which also has a locking end clip.
(The mittens also have removable inner gloves made of brushed knit polyester fabric featuring woven fabric fourchettes, partially elasticized wrists and hemmed fabric cuffs. The removable inner gloves are affixed to the outer shell mitten by a string that loops around a small pull-tab sewn into the bottom edge of the glove cuffs. These remain separately classifiable under 6116.93.94.)
CBP is proposing to issue HQ 009365 in order to modify NY N003928 and reclassify the subject outer ski mitten under HTS 6116.10.08, as gloves, mittens and mitts, specially designed for use in sports, including ski and snowmobile gloves, mittens, and mitts rather than under HTS 6116.10.44, as gloves, mittens and mitts, knitted or crocheted: impregnated, coated or covered with plastic or rubber containing over 50 percent by weight of plastic or rubber.
The mittens possessed three of the four features specified in Stonewall Trading Company v. U.S., (1) a hook and clasp to hold the gloves together, (2) an extra piece of vinyl with padding reinforcement across the back of the hand where the knuckles bend and cause stress, and (3) cuffs with an elastic gauntlet.
In NY N003928, CBP determined that fourth Stonewall criteria, an extra piece of vinyl stitched along the thumb to meet stress caused by the flexing of the knuckles when the skier grasps the ski pole, was absent, precluding the subject mittens from classification as gloves specifically designed for use in skiing.
CBP states that the Stonewall criteria 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. In addition to the Stonewall criteria 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 classification of sport and ski gloves under HTS 6116.10.08 is governed by use, e.g. principle use. In determining the principal use, in addition to the factors outlined in the Stonewall Trading case, CBP examined physical characteristics such as construction of the mitten, the materials used and their resistance to elements as well as marketing, advertisement and sale of the subject mittens.
Therefore, CBP now proposes that by the application of GRI 1 and 6, the U.S. Additional Rule of Interpretation 1(a), and other factors, the subject mittens are classified in 6116.10.80, which provides for "Gloves, mittens and mitts, knitted or crocheted: all the foregoing specially designed for use in sports, including ski and snowmobile gloves, mitten and mitts."
Proposed 6116.10.08, 2.8 %; Current: 6116.10.44, 9.9 %
December 10, 2009 CBP Bulletin (Vol. 43, No. 50) available at http://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2009/