CLA-2 CO:R:C:T 951980 CRS
Peter J. Fitch, Esq.
Fitch, King and Caffentzis
116 John Street
New York, NY 10038
RE: Drummer's glove; batting glove; specially designed for use
in sports; request for reconsideration; HRL 089393 modified.
Dear Mr. Fitch:
This is in reply to your letter of June 3, 1992, on behalf
of your client Universal Percussion, Inc., in which you requested
reconsideration of Headquarters Ruling Letter (HRL) 089393 dated
August 26, 1991.
FACTS:
The article in question is a man's glove manufactured in and
imported from the Republic of Korea. The glove is full-fingered,
with a palm and palm-side fingers constructed from smooth pigskin
leather. The back of the glove is of man-made fabric mesh, while
the fourchettes are made from knit fabric. An elastic strap with
a hook and loop closure is featured at the wrist, directly below
a divided, elasticized cuff.
In HRL 089393 the instant glove was classified in subheading
4203.29.3010, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). However, you maintain, as you contended in
your original ruling request of April 23, 1991, which resulted in
the issuance of HRL 089393, that the glove is specially designed
for use in sports and thus is properly classifiable in subheading
4203.21.2000, HTSUSA, under a provision for batting gloves.
In addition to the glove in question, you submitted four
other gloves for the purposes of comparison. Two were submitted
with your initial ruling request as examples of batting gloves,
and two as examples of gloves sold and used as drummer's gloves.
With regard to the former, one, a "Louisville Slugger" model,
featured a palm and palm-side fingers made from cowhide leather,
a back made from synthetic knit material, and a wide, knit,
elasticized cuff with a tab strap secured by a hook and loop
fastener. The second batting glove, a "Franklin" model, also had
a palm and fingers made from cowhide leather, and an elasticized,
tight-fitting, hook and loop type tab closure. The back was made
from knit elastic mesh and the fourchettes from a finely knit
synthetic material.
The sample drummer's gloves were attached to your request
for reconsideration of HRL 089393. The first bears the name
"Ascend" and features a palm and fingers made from thin leather,
and a mesh upper. The second is sold under the "Tama" name, and
has a stiff leather finish and uppers made from man-made knit
fabric. On the "Ascend" the leather extends around to cover the
back side of the thumb, while on the "Tama," both the thumb and
part of the index finger are made from leather. Both models
fasten by means of hook and loop closures, with that of the
"Tama" being similar to that of the glove in question.
ISSUE:
The issue presented is whether the glove in question is
specially designed for use in sports such that it is classifiable
as a batting glove.
LAW AND ANALYSIS:
Heading 4203, HTSUSA, provides for articles of apparel and
clothing accessories of leather or composition leather. At the
six digit international level, subheading 4203.21, HTSUSA, covers
gloves, mittens and mitts specially designed for use in sports.
At the eight digit U.S. level, subheading 4203.21.2000, HTSUSA,
provides for batting gloves. The glove in question is made from
leather and man-made fabric. However, the leather portion of the
glove determines the article's classification pursuant to General
Rule of Interpretation 3(b); accordingly, the glove is
classifiable in heading 4203 as an article of apparel of leather.
The legal standard for determining whether, for tariff
purposes, an article is "specially designed" for a particular use
is well established in judicial precedent. In United States v.
Faber, 7 Ct. Cust. Appls. 406 (1916), the issue was whether
certain lead pencils were articles designed to be carried on or
about the person. The court stated that more was required than
the fact that an article was susceptible of being carried on or
about the person and that "by the use of the word 'designed' it
must be assumed that Congress intended to include only such
articles as were peculiarly and specially fitted for being
carried on or about the person and devoted to such use." Id. at
407. The court found nothing to suggest that the pencils were
"designed" to be carried on or about the person.
In Plus Computing Machines, Inc. v. United States, 44 CCPA
160, C.A.D. 655 (1957), the issue was whether certain calculating
machines were "specially constructed for multiplying and
dividing". The court interpreted "specially constructed" to
refer to an article "designed for...a specific purpose." The
court added, however that "the statement that an article is
specially designed for a particular purpose means merely that it
includes features which adapt it for that purpose." Id. at 167.
In Stonewall Trading Co. v. United States, 64 Cust. Ct. 482,
C.D. 4023 (1970), the issue before the court was whether certain
vinyl gloves were designed for use in skiing such that they were
dutiable under item 735.05 of the Tariff Schedules of the United
States, which provided for gloves "specially designed for use in
sports." The court found that the gloves had features which made
them "particularly suitable for use in the sort (sic) of skiing
as an aid and protective equipment for the skier." Id. at 489.
Similarly, in Sports Industries, Inc. v. United States, 65
Cust. Ct. 470, C.D. 4125 (1970), the court held that certain
neoprene gloves were specially designed for use in scuba diving
in that they had special features such as insulating properties
that indicated they were designed for underwater sports. The
court noted that "it is well established that whether an article
is 'specially designed' or 'specially constructed' for a
particular purpose may be determined by an examination of the
article itself, its capabilities, as well as its actual use or
uses." Id. at 473.
You contend that the glove in question is specially designed
for use as a batting glove, and request that we revoke HRL 089393
which ruled to the contrary. In HRL 089393, Customs identified
certain features of the glove in question which indicated that it
was not specially designed for use as a batting glove. First,
the strap was positioned below an elasticized cuff as opposed to
being part of an elasticized cuff. In addition, the cuff was
divided. Second, the palm was made from a smooth leather that
would not afford the wearer a firm grip. Finally, the color of
the glove was not considered typical of a batting glove. Each of
these features are examined below.
As noted above, in HRL 089393 certain differences in the
wrist closure which distinguished the glove in question from a
batting glove, were identified, specifically, the fact that the
wrist closure was located below an elasticized cuff rather than
forming part of the cuff as with the comparison batting gloves.
Customs remains of the opinion that the positioning of the wrist
closure of the instant glove distinguishes the article from a
batting glove. The cuff itself was also deemed to be significant
to the extent that, in contrast with the comparison batting
gloves, the cuff of the glove in question remains divided for
ease of movement even when the hook and loop fastener is secured.
This is a particularly desirable feature of drummers' gloves, if
not essential, given the range of movement required in drumming.
Similarly, Customs remains of the view that the presence of a
divided cuff excludes the instant glove from classification as a
batting glove.
We also regarded the leather palm of the glove in HRL 089393
as being unsuitable to effect the primary purpose of a batting
glove, viz., an improved grip. In contrast, while the batting
gloves submitted for comparison purposes had palms made from a
textured leather that did afford a secure grip, the leather used
in the comparison drummer's gloves was either smooth and did not
provide a secure grip, as with the glove in question, or was
textured but of a flimsy construction that would be unsuitable
for use as a batting glove. Accordingly, we determined that the
glove was not designed for use as a batting glove. We continue
to adhere to the view that the leather palm of the instant glove
is indicative of the fact that the article is not specially for
use as a batting glove.
In addition, we now note that the leather portion of the
comparison batting gloves covers not only the palm and palm-side
fingers but also protects those upper parts of the index and
little fingers that would come into contact with a baseball bat.
On the other hand, the leather portion of the comparison
drummer's gloves extends to cover those upper parts of the thumb
and forefinger that would likely be subject to added wear through
the activity of drumming. In this respect the glove in question
resembles the gloves submitted as examples of drummer's gloves.
Furthermore, we are of the opinion that the man-made fiber
mesh from which the upper is constructed also indicates that the
instant glove was not specially designed for use as a batting
glove. Although suitable for the activity of drumming, the mesh
portion of the glove would not withstand the rigors of baseball,
and thus would soon render the article unfit for use.
Finally, in HRL 089393 we stated that we considered the
color of the instant glove, black, as indicative of the fact that
it was not specially designed or constructed as a batting glove.
We have reviewed this position and have determined that the color
of the glove at issue does not preclude it from being classified
as a batting glove.
However, based on our review of this matter it remains
Customs' opinion that the instant glove is not specially designed
for use as a batting glove. Its construction, specifically the
smooth leather of the palm and the protection for the thumb and
index finger, indicate that it was not designed as a batting
glove.
Although Customs does not consider the instant glove to have
been specially designed for use as a batting glove, we are now of
the opinion that it is specially designed for use in sports. The
Harmonized Commodity Description and Coding System, Explanatory
Notes, constitute the official interpretation of the Harmonized
System at the international level (four and six digits). With
regard to sports gloves, subheading Explanatory Note 4203.21
provides:
The expression "Gloves, mittens and mitts,
specially designed for use in sports" includes gloves,
mittens, mitts, whether sold singly or in pairs, having
functional design features which make them particularly
suitable for use in sports (e.g., ice hockey gloves,
which protect the hands and assist the holding of the
stick, and boxing gloves).
Among the features which indicate that the instant glove is
specially designed and constructed for use in sports are the knit
mesh fabric covering the back of the hand and the thin leather
palm. While these features are not characteristic of a batting
glove they would still be sufficient to provide an improved grip
and protection for the hand such that the glove could be used as
an all-purpose sports glove, e.g., for racquetball, golf.
These design features also distinguish the glove from dress
gloves, work gloves, etc., and indeed render impractical the use
of the glove in most non-sporting activities, with the exception
of drumming. The glove does not provide warmth and is not
fashionable. See HRL 952074. Thus while the glove at issue is
not specially designed for use in sports as a batting glove, it
is properly classifiable at the six digit (international) level
under the provision for gloves specially designed for use in
sports, specifically at the eight digit (U.S.) level under the
residual provision for other gloves.
HOLDING:
Pursuant to section 177.9(d)(1), Customs Regulations (19 CFR
177.9(d)(1)), HRL 089393 dated August 26, 1991, is modified in
conformity with the foregoing.
The merchandise in question is classifiable in subheading
4203.21.8060, HTSUSA, under the provision for other gloves
specially designed for use in sports; it is dutiable at the rate
of 4.9 percent ad valorem.
Sincerely,
John Durant, Director