United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2002 HQ Rulings > HQ 965775 - HQ COPYOF96 > HQ 965870

Previous Ruling Next Ruling
HQ 965870




October 8, 2002

CLA-2 RR:CR:TE 965870 ttd

CATEGORY: CLASSIFICATION

TARIFF NO: 6116.93.8800

John B. Pellegrini, Esq.
Ross & Hardies
65 East 55th Street
New York, NY 10022-3219

RE: Classification of Gloves; Hunter Orange; Hunting

Dear Mr. Pellegrini:

This is in response to your letter, dated July 31, 2002, on behalf of Paris Asia, Ltd., requesting a binding ruling classification of a pair of gloves under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Your letter, which was originally submitted to the Customs National Commodity Specialist Division in New York, was referred to this office for reply. A sample was submitted for review.

FACTS:

The merchandise under consideration is a pair of gloves, identified as style number 119208WM. The subject merchandise is a pair of full-fingered gloves constructed of a knitted polyester fabric, which is brushed on the interior surface. The gloves are unlined and feature ribbed knit cuffs. They are “Hunter Orange” in color.

We note that in New York Ruling Letter (NY) I81425, dated June 4, 2002, Customs classified a similar glove of cotton under subheading 6116.92.6420, HTSUSA, which provides for “Gloves, mittens and mitts, knitted or crocheted: Other: Of cotton: Other: Made from a pre-existing machine knit fabric: Without fourchettes, Jersey type, brushed or napped fabric.”

You claim that the subject glove is “Hunter Orange” in color and that it is used in the “sport of hunting.” You assert that the glove is classified in subheading 6116.93.0800, HTSUSA, which covers, in part, gloves specially designed for use in sports.

ISSUE:

Whether the merchandise is specially designed for use in sports?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

You contend that the subject merchandise is classified in subheading 6116.93.0800, HTSUSA, 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.” As this is a "use" provision, to determine whether an article is classifiable in subheading 6116.93.0800, HTSUSA, requires consideration of whether the article has particular features that adapt it for the stated purpose. In Sports Industries, Inc. v. United States, 65 Cust. Ct. 470, C.D. 4125 (1970), the court, in interpreting the term "designed for use," under the Tariff Schedules of the United States, the predecessor to the HTSUSA, examined the features of the article as well as the materials selected and the marketing, advertising and sale of the article. The case suggests that, to be classifiable in subheading 6116.93.0800, the subject gloves must be shown to be, in fact, specially designed for use in a particular sport.

Concerning the proper classification of sports gloves, numerous other court cases have examined the term "specially designed for use in sport." In American Astral Corp. v. United States, 62 Cust. Ct. 563, C.D. 3827 (1969), the court held that certain gloves were properly classified as lawn tennis equipment because the evidence established that the gloves were specially designed for use in the game of tennis. At the time, the Tariff Schedules of the United States included provisions for tennis equipment covering specially designed protective articles, such as gloves. The court noted the glove's distinguishing characteristics, which set it apart from ordinary gloves worn as apparel. Those features included: (a) an absorbent terry cloth back; (b) a partially perforated lambskin palm designed to aid grip, provide protection, and prevent perspiration by allowing air circulation; (c) fourchettes made from stretch material; (d) elasticized wrist for a snug fit and support; and (e) a button positioned to prevent interference to the player. Additionally, the court considered factors such as the nature of the importer's business, how the gloves were advertised in the trade, the types of stores where the gloves were sold, and the fact that the gloves were sold only in single units and not in pairs. The court also noted that, the fact that the gloves had other possible uses did not preclude their classification as sporting equipment. See, U.S. Customs Service, What Every Member of the Trade Community Should Know About: Gloves, Mittens & Mitts, Not Knitted or Crocheted Under the HTSUS, 32 Cust. B. & Dec. 51 (Dec. 23, 1998).

In Porter v. United States, 409 F. Supp. 757; 76 Cust. Ct. 97, Cust. Dec. 4641 (1976), the court held that certain motorcross gloves, which possessed features specially designed for use in the sport of motorcross, were accordingly, specially designed for use in sports, even though not used exclusively for the sport of motorcross. In Porter, the court based its conclusion on the fact that motorcross gloves featured special characteristics and construction, specially designed for the sport of motorcross. 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 motorcross bike on a dirt track. It was also shown that motorcross racing encompasses internationally accepted rules and that the American Motorcycle Association Motorcross Competition Rule Book specifically requires certain protective clothing and equipment, of which the motorcross gloves at issue were one type that complied with the requirements for the gloves. While the court noted that the gloves were subject to use outside the sport of motorcross, the plaintiff had already demonstrated that the gloves were primarily designed for the sport of motorcross. Moreover, the features, which made the gloves ideal for the sport of motorcross, rendered them useless or cumbersome for other types of motorcycle riding. Thus, the court in Porter found that the merchandise considered was designed to meet the needs of the sport.

Accordingly, 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 in a certain sport. In determining whether gloves are specially designed for use in sports, Customs considers the connection the gloves have to an identified sporting activity, the features designed for that sporting activity, and how the gloves are marketed, advertised and sold in relation to the named sport.

While the term "sport" is not defined in the tariff, in Headquarters Ruling Letter (HQ) 089849, dated August 16, 1991, Customs noted that common dictionaries defined the term "sport" as "an activity requiring more or less vigorous bodily exertion and carried on according to some traditional form or set of rules, whether outdoors, as football, hunting, golf, racing, etc., or indoors, as basketball, bowling, squash, etc." In Newman Importing Company, Inc. v. United States, 415 F. Supp. 375, Cust. Ct. 143, Cust. Dec. 4648 (1976), in finding backpacking to be a sport, the court determined that the term "sport" is not solely defined in terms of competitiveness, but also arises from the development and pursuit of a variety of skills. In this respect, in HQ 957848, dated August 10, 1995, Customs found hunting, fishing, canoeing, archery and similar outdoor activities to fall within the purview of "sport." The American College Dictionary (1970) defines the term "sport" as "a pastime pursued in the open air or having an athletic character." Likewise, Webster's New Dictionary of the English Language (2001) defines "sport" as:

1: a source of diversion: PASTIME

2: physical activity engaged in for pleasure.

In HQ 964901, dated January 31, 2002, Customs also defined the term “sport” according to The Random House Dictionary of the English Language, the Unabridged Edition (1983) as:
an athletic activity requiring skill or physical prowess and often of a competitive nature, as racing, baseball, tennis, golf, bowling, wrestling, boxing, hunting, fishing, etc.

2. a particular form of this, esp. in the out of doors.

You claim that the subject style of gloves is specially designed for use in the sport of hunting. Customs acknowledges that the term "sport" may encompass a variety of outdoor activities, which may or may not have competitive aspects, and consequently, we find that hunting is a sport for tariff classification purposes. However, while we consider “hunting” to be a sport, the subject gloves are not classifiable as being specially designed for use in the sport of hunting. Review of the sample fails to demonstrate how the gloves’ features are specially designed for the sport of hunting. In HQ 089769, dated October 8, 1991, Customs recognized certain design characteristics as indicative of “some intent to design gloves as hunting gloves.” The cited features included:

A non-skid reinforcement, which includes the two shooting fingers;

A camouflage outershell or outershell with enhanced visibility;

Insulation that enhances warmth without creating excess bulk; and

A hook and clasp closure.

In HQ 957042, dated January 18, 1995, Customs determined a pair of gloves (identified as style 2936) to be specially designed for the sport of hunting. In addition to considering the factors cited in HQ 089769, in HQ 957042, we also considered other features indicating that the gloves were specially designed for use in hunting. We noted the gloves featured a tapered index finger for easier fingertip access to the trigger and “action back” pleats which allowed for greater hand flexibility. Moreover, we found that the presumption that style 2936 was specially designed as a hunting glove was further substantiated by a considerable amount of advertising, trade information and related extrinsic evidence.

In HQ 965131, dated October 25, 2001, Customs found that gloves designed for use in hunting or competitive shooting were specially designed for use in sports. We determined that each of the three styles of gloves (Styles UM-1, UMF-1 and UMF-3) exhibited design features beneficial to hunters and shooters such as a polyurethane-coated fabric palm to enhance grip, a tight fit to facilitate handling ammunition, and/or gel inserts to protect against recoil. The gloves considered also had hook and loop closures and knit backs for flexibility. Moreover, in that ruling, sufficient marketing materials were submitted, illustrating the benefits and design features of the gloves, which made them ideal for the outdoor sportsman. The gloves were also marketed through, and sold in, outdoor sporting goods stores that catered to hunters and competitive shooters.

In HQ 964901, dated January 31, 2002, Customs considered four styles of camouflage-patterned gloves with half-fingers made of polyester rayon fleece fabric. In that ruling, each style also had an elasticized wrist and hemmed cuff, and the palm was composed of cellular polyvinyl chloride (PVC) plastic overlay material. In addition to a camouflage pattern, each style exhibited a non-skid palm, and fingertip access to the trigger. As the gloves in HQ 964901 exhibited three out of the four features cited in HQ 089769, we found them specially designed for use in the sport of hunting.

In your letter, you contend that based solely on the color of the subject gloves, they are classifiable as specially designed for use in hunting. To support your claim, you assert that the industry standard for “Hunter Orange” is a dominant wavelength between 595 and 605 nanometers with an excitation of not less than 85 percent and a luminescence factor of not less than 40 percent. You further assert that the fabric used for the subject gloves must be tested to confirm that they meet this standard. While we do not dispute the industry standard for “hunter orange” or that the fabric meets this standard, we disagree that the subject gloves are specially designed for use in sports based solely on the their color.

In HQ 088386, dated May 31, 1991, in deciding whether a particular pair of camouflage gloves was specially designed for use in the sport of skiing, we adopted the position that “the color of the gloves is not germane to their classification.” Here, the subject gloves require specific features, other than color, that make them suited for use in the sport of hunting. Unlike the hunting gloves considered in HQ 965131 and HQ 964901, the gloves at issue lack characteristics such as a tapered index finger, polyurethane-coated fabric palms, tight fitting design, knit backs, gel inserts, etc. See HQ 957042; HQ 965131; and HQ 964901 (all cited above). Accordingly, the subject gloves are indistinguishable from brightly colored “safety orange” work gloves that are commonly used by flagmen in traffic control situations. Therefore, we reject the notion that the subject gloves may be “specially designed for use in sports” (in this case, hunting) based solely on their color.

In your letter, you contend that, in addition to being “Hunter Orange,” the subject gloves have a “Hunter’s Specialty” hang tag and that they will be sold to the hunting department of a retail store. However, in HQ 088374, dated June 24, 1991, we found that a hang tag with the word “ski” was insufficient to show that they were specially designed for skiing. Customs ruled that the gloves considered were not ski gloves because the importer provided no evidence that they were designed for the sport of skiing, absent a hang tag with the word “ski.” Here, as in HQ 088374, the hang tag with the phrase “Hunter’s Specialty” is not sufficient evidence to support your claim that the gloves are specially designed for the sport of hunting. While the gloves may indeed be used by some for hunting purposes, they lack the characteristics associated with gloves that are specially designed for use in the sport of hunting. The primary design, construction and function of the subject gloves as ordinary jersey knit work gloves determines their classification. Their color is not determinative.

As the gloves under consideration are not specially designed for use in sports, they are not properly classified in subheading 6116.93.0800, HTSUSA. The subject gloves are properly 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.”

HOLDING:

The subject gloves are properly 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 general column one rate of duty is 18.8 percent ad valorem. The textile restraint category is 631.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs office. The Status Report on Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: