CLA-2 R:C:T 957848 jb
District Director U.S. Customs Service 111 West Huron Street Buffalo, New York 14202
RE: Decision on Application for Further Review of Protest No.0901-95-100246; knit glove/mitten is not specially designed for use for hunting and related sports; Porter v. United States
Dear Sir:
This is a decision on application for further review of a protest timely filed on behalf of Manzella Productions, Inc., on February 8, 1995, against your decision regarding the classification of knit gloves/mittens. All entries were liquidated on December 23, 1994. Samples were provided to this office for examination.
FACTS:
The merchandise at issue, referenced style number A-50, consists of string acrylic knit half-fingered gloves with four inch self rib-knit cuffs. The gloves feature a rectangular synthetic suede palm patch (1-1/2 inches by 3-1/2 inches) and a lining. Sewn at the base of the fingers on the back of each of the gloves is a fold back lined mitten-like pouch. This portion can be placed over the half exposed four fingers and is secured when not in use by velcro tabs.
The merchandise was classified by you in subheading 6116.93.8800, HTSUSA, which provides for, among other things, other gloves and mittens, knitted or crocheted, of synthetic fibers, without fourchettes. The Protestant disagrees and requests classification in subheading 6116.93.0800, HTSUSA, which provides for, among other things, other gloves and mittens, knitted or crocheted, of synthetic fibers, all the foregoing specially designed for use in sports, including ski and snowmobile gloves, mittens and mitts.
In support of the Protestant's claim that the merchandise is properly classified in subheading 6116.93.0800, HTSUSA, reference is made to:
1. Porter v. United States, 409 F.Supp. 757; 76 Cust Ct. 97; Cust Dec. 4641 (1976)
2. Newman Importing Company, Inc. v. U.S., 415 F. Supp. 375; 76 Cust. Ct. 143; Cust. Dec. 4648 (1976)
3. The Manzella catalogue advertises the subject merchandise by showing the AC-50's with hunting and related sports equipment
ISSUE:
What is the proper classification for the subject merchandise?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.
In Porter v. United States, the U.S. Customs Court held that certain motocross gloves, which contained special features were specifically designed for use in sport or motocross and were, therefore, dutiable at a rate for gloves specifically designed for use in sports, even though not used exclusively for the sport of motocross. The Protestant believes that the findings of the Court in regard to the motocross gloves support his position that the subject merchandise is specifically designed for hunting and other outdoor sports, as evidenced by the fact that the mitt pouch can be folded back to reveal the half-fingered glove.
The finding made by the Court in Porter was premised on the fact that motocross gloves featured special characteristics and construction, specifically designed for the sport of motocross. These characteristics included a shortened palm, a reinforced thumb, an elastic band, protective strips or ribbing, and an out-seam construction. These features complimented the particular protective needs of the driver while racing with the specially designed motocross bike on a dirt track. It was also shown that motocross racing encompasses internationally accepted rules and that the American Motorcycle Association Motocross Competition Rule Book specifically requires certain protective clothing and equipment, of which the motocross gloves at issue were one type that complied with the requirements for the gloves. Furthermore, it was pointed out that the motocross gloves would prove uncomfortable for ordinary motorcycle riding
because they lacked the padding for warmth, and the gauntlets to keep the wind from going up the rider's sleeves. Thus, although the Court added that the gloves were subject to use for other than the sport of motocross, the plaintiff in that case had already established that the gloves were primarily, if not solely, designed for the sport of motocross in mind, and furthermore, that those very features which rendered them ideal for the sport of motocross, rendered the gloves useless or cumbersome for other types of motorcycle riding.
The design feature of the submitted merchandise, i.e., the mitten like pouch which can be folded back, makes the gloves suitable for use on days with cold weather climate while also allowing the wearer the unimpeded use of his/her bare fingers. Activities such as photography, surveying, using hand tools, opening a lock, and using house/car keys, are all examples of ordinary activities which are easier to perform with bare fingers. The subject merchandise, in contrast to the motocross gloves in Porter, do not have any special characteristics which evidence primary use for the outdoor sports you have indicated, i.e., hunting, fishing, canoeing, archery and the like. The gloves, in our opinion, are an excellent source of warmth, and provide the wearer with the option of pulling back the mitt portion as needed.
It was further asserted that the holding in Newman supports the position that the subject merchandise is intended for sports. Addressing the question of whether a lightweight portable tent was sporting equipment, the Court held:
... under the modern view that sport equipment includes not only that which is "necessary"
but also that which is specially designed for use in the sport, these tents are indeed sport equipment.
The court also stated:
In any event the element of enjoyment or recreation arising from the development or practice of individual skills, different from those involved in routine daily activities, is a better indication of a sport than competitiveness.
The holding in Newman stressed the fact that the term "sport" was not solely defined in terms of competitiveness, but also arose from the development and pursuit of a variety of skills. In this respect we do not disagree with your assertion that hunting, fishing, canoeing, archery and similar outdoor activities fall within the purview of "sport" as defined by the Court in Newman. However, in its holding the Court expressly stated:
At this point I note specifically that the use of a tent for shelter is part of the sport of backpacking, which encompasses not only the act of walking with a pack on the back but all the activities associated with the maintenance of the individual while away from
"civilization". In this respect tent would be equipment even under the st ringent view of equipment formerly prevailing and exemplified in Cruger's (Inc.) v. United States, 12 Ct. Cust. Appls. 516, T.D. 40730 (1925), which held e quipment to be limited to objects ordinarily required for the proper and efficient playing of a sport or protection from its hazards.
It is clear that the holding in Newman, similar to the holding in Porter, is predicated on the factual basis that the merchandise in question was designed to meet the needs of the sport. In both Porter and Newman the needs of the sport required special features of its "equipment". In the former, the motocross gloves had protective features designed to both shield the hands from flying debris from the dirt track and to prevent blistering. In the latter, the tents were designed to shelter the backpacker. Thus, the motocross gloves and the tents were designed not only for the facilitation of the sport, but in the words of the Court, also for the needs of the driver, i.e., for protection against the potential hazards of the sport. The same cannot be stated for the submitted merchandise. The submitted gloves do not offer any particular characteristics for any one of the sports you enumerated. They do however, provide comfort to the wearer on those occasions where one would need both protection from the elements and the option to fold back the mitt portion to freely access the fingers.
Reference is made to the Manzella catalogue and to the "Rugged Casual" section which advertises the AC-50 gloves. Additionally, the Protestant enclosed the advertisement pages for the years 1993, 1994 and 1995 which show the AC-50's grouped together with similar gloves/mittens which are alternately depicted holding a knife, a rifle, arrows, bullets, and being worn by a sportsman paddling a canoe. Also enclosed was the tag which is attached to the merchandise when purchased, which portrays the sports activities of hunting, fishing and archery. In our opinion, the Manzella catalogue and accompanying advertisements are ambiguous at best. Neither the placement of various objects with the gloves nor the picture of the sportsman paddling a canoe offer proof that the gloves, per se, were designed specifically for the sports of hunting, fishing, canoeing and archery. The rest of the catalogue similarly reveals that as a whole, the catalogue primarily contains merchandise designed to keep hands and feet warm during cold weather climate while participating in a variety of outdoor activities. It is also interesting to note, that several pages of the catalogue entitled "Technical Sportsman" and "Sportsman's Knits", show a man fishing, and bearing a rifle, respectively, not wearing the AC-50 gloves, but with either normal half-fingered or full-fingered gloves. Particularly, the Technical Sportsman's page advertises different versions of what is referred to as a "shooting glove" for a more "sensitive grip on the trigger and shotgun". We refer you to Headquarter ruling letter (HQ) 954704, dated November 12, 1993, where Customs addressed the issue of whether lined leather gloves were "specially designed" for use in the sport of snowmobiling. After examining both the gloves and the accompanying advertisements, Customs held that the gloves were found to be equally suited for use as either motorcycle or snowmobile gloves. The claim that the gloves were "designed, marketed and sold specifically as snowmobile gloves" was unsupported by ambiguous advertising.
Customs has classified virtually identical merchandise in the past. In New York ruling letter (NY) 872077, dated April 1, 1992, a "Fingermit" was classified in subheading 6116.91.0000, HTSUSA, which provides for, among other things, other gloves, mittens and mitts, knitted or crocheted, of wool or fine animal hair. The advertisement accompanying this particular merchandise showed the wearer engaged in a job or non-sport activity such as writing, playing a trumpet, looking through a bag, and taking pictures. Similarly, it is the opinion of this office that examination of both the physical evidence, that is the AC-50 gloves, and the submitted catalogue, does not support the Protestant's claim that the gloves are "designed, marketed and sold" specifically for use as sports gloves. Accordingly, the merchandise was correctly classified in subheading 6116.93.8800, HTSUSA.
HOLDING:
The submitted merchandise, referenced style number AC-50, was correctly classified in subheading 6116.93.8800, HTSUSA, which provides for, gloves, mittens and mitts, knitted or crocheted: other: of synthetic fibers: other: other: without fourchettes.
The protest should be denied in full. A copy of this decision should be appended to the Form 19 Notice of Action and furnished to the Protestant. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-65, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision.
Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division