CLA-2 CO:R:C:T 954704
District Director
U.S. Customs Service
6269 Eighth Industrial Drive
Cudahy, WI 53110
RE: Decision on Application for Further Review of Protest No.
3701-93-100088; denied; classification of leather gloves;
motorcycle gloves not sport gloves; not specially designed
for use as snowmobile gloves; 4203.29.1500, HTSUSA; HRL
951219 (6/26/91); HRL 070520 (10/14/82).
Dear Sir:
This is a decision on application for further review of a
protest timely filed on behalf of Yamaha Motor Corp., on May 21,
1993, against your decision regarding the classification of
leather gloves. The subject merchandise was entered on August
20, 1992, under subheading 4203.29.1500, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) and liquidated
on March 19, 1993.
FACTS:
The gloves at issue are referenced style number SGL-LGNT2-
BK. They are full-fingered, fully lined leather gloves. The
gloves are constructed with Thinsulate insulation, a knit man-
made fiber liner and a microporous membrane which is water and
wind proof and breathable. The gloves have a reinforced palm
patch and thumb crotch, a partially elasticized wrist and a four
inch gauntlet. The invoice for these gloves contains a
handwritten notation which describes them as "motorcycle gloves."
At this office's request, Yamaha Motor Corp. has submitted a page
from its catalog which includes a photocopy of style SGL-LGNT2-
BK and describes them as "Leather Gauntlet Gloves" and provides
the following copy:
"High-Grade drum-dyed cowhide provides a great
look together with lasting protection against
the elements. Designed with a waterproof
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insert to keep hands dry and Thinsulate lining
to keep them warm."
Protestant states that style SGL-LGNT2-BK is a snowmobile
glove and should be classified as a sport glove within subheading
4203.21.8060, HTSUSA. Protestant bases this contention on the
fact that Yamaha Motor Corp. is an importer/retailer of sport
vehicles and that this provision is the most specific subheading
for this merchandise.
ISSUE:
Are the leather gloves at issue classifiable as gloves
specially designed for use in sports, under subheading
4203.21.8060, HTSUSA, or as leather gloves under subheading
4203.29.1500, HTSUSA?
LAW AND ANALYSIS:
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.
Yamaha Motor Corp. imports and sells both motorcycles and
snowmobiles. The gloves for these two types of activities
receive disparate treatment for classification purposes under the
HTSUSA. Customs has held that motorcycle gloves are not
classifiable as sport gloves because traditional motorcycling is
not a sport, but rather a mode of transportation. See
Headquarters Ruling Letter (HRL) 070520, dated October 21, 1992.
(Note that Customs has deemed motocross racing gloves as
specially designed for use in sports and thereby classifiable as
sport gloves under subheading 4203.21.8060, HTSUSA. See HRL
951219, dated June 26, 1992). Customs has classified snowmobile
gloves, so long as they possess features practicable for
snowmobiling and are principally used to this end, as sport
gloves under subheading 4203.21.8060, HTSUSA. The issue before
us, therefore, is whether these gloves are deemed motorcycle
gloves or snowmobile gloves as it is this distinction which
determines whether the gloves are classifiable as sport gloves.
A physical examination of the gloves at issue yields the
conclusion that their design and construction render them equally
suitable for use as either motorcycle or snowmobile gloves. The
gloves are made of cowhide which is sufficiently thick to protect
the hands from stones, branches and the like. The gloves possess
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a reinforced palm and thumb crotch which enables them to
withstand repeated contact with a throttle. The gloves are lined
with a waterproof insert and Thinsulate which serves to keep the
hands warm; this is a highly desirable trait for gloves that are
to be used on vehicles that are exposed to the elements such as
motorcycles and snowmobiles. The gloves are also designed with a
four-inch gauntlet and partially elasticized wrist which serve to
greatly reduce the wind and moisture that can enter a glove.
All the aforementioned physical characteristics of style
SGL-LGNT2-BK are equally suitable for use in either a motorcycle
glove or a snowmobile glove. Accordingly, classification cannot
be based on this article's physical attributes. In situations
where classification cannot be determined by a physical
examination of an article, Customs will consider extrinsic
evidence which establishes how a particular article is designed,
marketed and sold. In Mast Industries, Inc. v. United States, 9
CIT 549, (1986), the Court of International Trade held that if an
article is designed, manufactured, marketed and used as a
nightgown, it is classifiable as such. In applying this
principle to the instant case, we are not persuaded by the
marketing evidence submitted to this office that the gloves at
issue are designed, marketed and sold as snowmobile gloves. The
catalog page which depicts these gloves, along with nine other
styles, does not expressly refer to these gloves as "snowmobile
gloves" nor does it state that they are for use in snowmobiling.
In fact, only one pair of gloves out of the ten illustrated is
explicitly described as matching "the new 1994 Yamaha snowmobiles
and outerwear." No such claim was made for the gloves at issue.
Without proof that style SGL-LGNT2-BK is designed, marketed and
sold specifically as snowmobile gloves, this office cannot
conclude that they are "specially designed" for use in this
sport.
Moreover, subheading 4203.21.8060, HTSUSA, is a use
provision. Additional U.S. Rule of Interpretation 1(a) provides:
"A tariff classification controlled by use (other
than actual use) is to be determined in accordance
with the use in the United States at, or immediately
prior to, the date of importation, of goods of that
class or kind to which the imported goods belong,
and the controlling use is the principal use."
[emphasis added]
As no evidence was submitted which effectively proves that the
gloves at issue are principally used as snowmobile gloves, and
the gloves are suitable for use as motorcycle gloves and
advertised in such a manner that a consumer may conclude the
gloves are either motorcycle or snowmobile gloves, this office is
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unwilling to conclude that style SGL-LGNT2-BK is specially
designed for use in sports and that their principle use is that
of a snowmobile glove. Accordingly, style SGL-LGNT2-BK is
classifiable as a leather glove under subheading 4203.29.1500,
HTSUSA.
HOLDING:
Style SGL-LGNT2-BK is classifiable under subheading
4203.21.1500, HTSUSA, which provides for "articles of apparel and
clothing accessories, of leather or of composition leather:
gloves, mittens and mitts: other: gloves of horsehide or cowhide
leather: other: with fourchettes or sidewalls which, at a
minimum, extend from fingertip to fingertip between each of the
four fingers." The rate of duty is 14 percent ad valorem and no
textile quota category is applicable to the subject merchandise
at this time.
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
Form 19 notice of action.
Sincerely,
John Durant, Director
Commercial Rulings Division