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.
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.
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.
Whether the merchandise is specially designed for use in sports?
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.
2: physical activity engaged in for pleasure.
2. a particular form of this, esp. in the out of doors.
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.
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.