# HQ 965157

# 

# May 14, 2002

# CLA-2 RR:CR:TE 965157 ttd

CATEGORY: Classification

TARIFF NO: 6216.00.5820

John M. Peterson, Esquire

Neville Peterson LLP

80 Broad Street - 34th Floor

New York, NY 10004

RE: Request for Reconsideration of New York Ruling Letter G87681

Dear Mr. Peterson:

This is in response to your letter of July 5, 2001, on behalf of your
client Ergodyne Corporation, in which you requested reconsideration of
New York Ruling Letter (NY) G87681 regarding the classification of
certain gloves under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA). Samples were submitted and considered prior to being
referred to Customs NCSD at 6 World Trade Center in New York where they
were ultimately destroyed in the events of September 11, 2001.
Additional samples were not requested.

FACTS:

In NY G87681, dated April 4, 2001, Customs classified \"Proflex\"
gloves, identified as Style Nos. 820, 810, 720, 710 and 712, under
subheading 6216.00.5820, HTSUSA, which provides for Gloves, mittens and
mitts: Other: Of man-made fibers: Other: With fourchettes, Other. We
note that you do not seek the reconsideration of the classification of
styles 700 and 9015 in NY G87681 under heading 4203, HTSUSA. In NY
G87681, the gloves at issue were described as follows:

> Style 820 is a glove with a complete palmside constructed of a
> synthetic leather material. Palmside coated fabric reinforcements are
> located at the center of the palm, base of the fingers, and the thumb
> and fingertips. The backside of the glove is made of a three ply
> material consisting of foam sandwiched between two knitted fabrics.
> Additional features include knitted fabric fourchettes, a vented 1-1/4
> inch wide elasticized wristband with rubberized tab closure which is
> secured by means of hook and loop fasteners, \"Proflex Ergodyne\"
> printed across the knuckle area, and \"Proflex Ergodyne\" embossed on
> the tab closure.
>
> Style 810 is a glove with a complete palmside constructed of a
> synthetic leather material. The backside of the glove is made of a
> three ply material consisting of foam sandwiched between two knitted
> fabrics. Additional features include knitted fabric fourchettes, a
> vented 1-1/4 inch wide elasticized wristband with rubberized tab
> closure which is secured by means of hook and loop fasteners,
> \"Proflex Ergodyne\" printed across the knuckle area, and \"Proflex
> Ergodyne\" embossed on the tab closure.
>
> Style 720 is a glove with a complete palmside constructed of a
> synthetic leather material. The glove is half-fingered at the thumb
> and two fingers. The backside of the glove is made of a three ply
> material consisting of foam sandwiched between two knitted fabrics.
> The glove features palmside coated fabric reinforcements at the center
> of the palm and the base of the fingers, fourchettes, a synthetic
> leather reinforcement at the thumb forefinger crotch, and a vented
> 1-1/4 inch wide elasticized wristband with a rubberized pull tab and
> rubberized wrist tightener which is secured by means of hook and loop
> fasteners. \"Proflex Ergodyne\" is printed across the knuckle area,
> and \"Proflex Ergodyne\" is embossed on the wrist tightener and pull
> tab.
>
> Style 710 is a glove with a complete palmside constructed of a
> synthetic leather material. The backside of the glove is made of a
> three ply material consisting of foam sandwiched between two knitted
> fabrics. The glove features palmside coated fabric reinforcements at
> the center of the palm and the base of the fingers, fourchettes, a
> synthetic leather reinforcement at the thumb forefinger crotch, and a
> vented 1-1/4 inch wide elasticized wristband with a rubberized pull
> tab and rubberized wrist tightener which is secured by means of hook
> and loop fasteners. \"Proflex Ergodyne\" is printed across the knuckle
> area, and \"Proflex Ergodyne\" is embossed on the wrist tightener and
> pull tab.

Style 712 is a half-fingered glove version of style 710.

ISSUE:

Whether the five styles of gloves are 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 gloves should be classified in subheading
6216.00.46, HTSUSA, which provides for, inter alia, gloves, mittens and
mitts, specially designed for use in sports. As this is a \"use\"
provision, to determine whether an article is classifiable in subheading
6216.00.46, HTSUSA, requires consideration of whether the article has
particular features that adapt it for the stated purpose. In *Sport
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 not only the features of the articles, but also the materials
selected and the marketing, advertising and sale of the article. The
case suggests that, to be classifiable in subheading 6216.00.46, 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]{.underline}, 32 Cust. B. & Dec. 51 3 (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
sport, Customs consistently considers the connection the gloves have to
an identified sporting activity, the features designed for that sporting
activity, and how the gloves are advertised and sold in relation to the
named sport.

While the term \"sport\" is not defined by the tariff, in 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]{.underline} (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]{.underline} (2001) defines \"sport\" as:

1: a source of diversion: PASTIME

2: physical activity engaged in for pleasure.

Notably, the term \"sport\" appears to also encompass activities in
which individuals engage professionally (i.e., professional sports).

In HQ 965131, dated October 25, 2001, Customs found that gloves designed
for use in the sports of hunting or competitive shooting were designed
for use in sports. In HQ 965131, marketing materials were submitted,
promoting the benefits and design features of the gloves, which made
them ideal for the outdoor sportsman. Moreover, the gloves were marketed
through, and sold in, outdoor sporting goods stores that catered to
hunters and competitive shooters. Likewise, in HQ 958892, dated October
4, 1996, we found that gloves which were close fitting and unlined with
palmside polyurethane coated fabric and nylon knit fourchettes were
specially designed for equestrian sports. Based on the detailed
advertising, the term \"All Purpose\" was found to refer to the multiple
equestrian activities for which the gloves could be used within the
sport.

Comparatively, in HQ 954704, dated November 12, 1993, Customs ruled that
lined leather gloves were not \"specially designed\" for use in the
sport of snowmobiling. After examining the gloves and accompanying
advertisements, we found that the gloves were equally suited for use as
either motorcycle or snowmobile gloves. Therefore, the claim that the
gloves were \"designed, marketed and sold specifically as snowmobile
gloves\" was unsupported due to ambiguous advertising. Similarly, in HQ
088374, dated June 24, 1991, Customs ruled that the gloves at issue were
not ski gloves, because the importer provided no evidence that they were
principally used in, or designed for, the sport of skiing. In HQ 088374,
there was no evidence of marketing or sale of the gloves as ski gloves,
absent a hang tag including the word \"ski.\" Moreover, in HQ 957848,
dated August 10, 1995, Customs found that the advertisement accompanying
the gloves showed the wearer engaged in non-sport activities such as
writing, playing a trumpet, looking through a bag and taking pictures.
In that ruling, the gloves (half-fingered with synthetic palm patch)
were not considered to be designed, marketed and sold specifically for
use as sports gloves.

In HQ 083450, dated August 25, 1989, in determining whether gloves were
\"specially designed for use in sports,\" Customs found that a glove
designed as a multi-sport glove and used in many different sports did
not necessarily satisfy the meaning of \"designed for use in sports.\"
In that ruling, we interpreted the term \"specially designed for
sports\" to mean that the gloves must have special design features
particular to the identified sport. Comfort, breathability and a
reinforced thumb were not sufficient to show that special design
features pertained specifically to any one of the sports cited
(bicycling, cross-country skiing, ATV-motorcycling racing and boating).

In this case, you claim that the gloves under consideration could be
used in either football or racecar driving, which are both commonly
recognized as sporting activities. Consequently, it must be shown that
the subject gloves have been specially designed for use in those sports
based upon their features and advertising, marketing and sale.

A review of the submitted advertising materials reveals that the company
provides ergonomic products for the workplace. However, lacking from the
company\'s marketing materials, either printed or on its website, is any
reference to sporting activities of any kind, and in particular,
football or racecar driving. In regard to the specific line of gloves
under consideration, the company\'s President and Chief Executive
Officer states \"\[t\]hese gloves are designed for people who work with
tools and who have not previously had the option of gloves that both
look good and provide the necessary protection. We think we\'re filling
a distinct gap in the marketplace.\" *See*
\<http://www/ergodyne.com/news\>. Other submitted materials state that
the subject gloves are marketed extensively to industrial consumers, for
industrial use.

You contend that the gloves at issue are specially designed to provide
comfort and safety to persons engaged in physically strenuous
activities, including certain sports and industrial operations. It is
claimed that the gloves are designed to reduce mechanical vibration and
shock, by reducing the vibration transmission properties of the gloves
in the palm of the hand. The gloves purportedly dampen shock impact and
vibration associated with work tools and various other types of
industrial and sporting activities. You acknowledge that the gloves are
principally marketed and sold for industrial safety purposes with only
ancillary use in sporting activities.

Marketing and advertising fail to demonstrate that the subject gloves
have features specially designed for the sports of football or racecar
driving. Unlike HQ 965131 (cited above), in which sufficient marketing
materials were submitted that promoted the benefits and design features
of the gloves which made them ideal for the outdoor sportsman, similar
information has not been provided here. Rather, like HQ 954704 (cited
above), the claim that the subject gloves are specially designed for
sport is supported only by ambiguous marketing. Accordingly, the subject
gloves are not properly classified in subheading 6216.00.46, HTSUSA, as
gloves specially designed for use in sports.

In your letter, you cite NY A86298, dated August 8, 1996, and NY B85790,
dated June 5, 1997, where Customs classified \"Mechanix\" gloves as
being specially designed for use by mechanics in the sport of automobile
racing. You contend that two of the styles currently under
consideration, nos. 710 and 712, are known as \"mechanics\" models and
should also be considered as specially designed for use in the sport of
automobile racing. To support this claim, you assert that Ergodyne Corp.
is a sponsor of Safety Products Inc. North American Stock Car Racing
Association (NASCAR) racing team, that it advertises its products in
NASCAR channels, and that its gloves are suitable for use by NASCAR
mechanics. You further assert that two of the company\'s largest
customers are a well-known industrial products catalogue company and a
large national hardware retailer, both of which sponsor NASCAR racing
teams.

After a review of NY A86298 and NY B85790, we find that the gloves
considered in those rulings, unlike the subject gloves, were specially
designed for use in the sport of automobile racing. In those rulings,
the marketing materials showed that the gloves were \"designed with
direct input from race teams.\" Moreover, the advertising for the gloves
in those rulings claims that the company provides the right gloves \"No
matter what form of motorsports....\" The gloves considered in those
rulings were officially licensed by NASCAR and used by multiple NASCAR
racing team pit crews. In addition, the company\'s website provided
multiple Internet links to racing team home pages on the World Wide Web.
In this case, because similar demonstrable support about the specific
design and marketing of the subject gloves for use in automobile racing
has not been provided, the gloves cannot be considered specially
designed for use in the sport.

You further contend that the subject gloves have been sent to persons
affiliated with a National Football League (NFL) team, who have
indicated that the gloves will be distributed to team members for use by
linemen, receivers and safeties. While the gloves may indeed be used by
some for an athletic activity, such as football, Customs does not find
that the subject gloves are specially designed for use in football, or
marketed and sold in channels indicating their use in the sport of
football. The gloves at issue will primarily be worn for industrial work
and any athletic use will be a secondary or fugitive use. The fact that
the subject gloves could have a fugitive use does not remove them from
classification according to their primary use, in this case - industrial
use. The primary design, construction and function of the subject gloves
as industrial gloves determines their classification, whether or not
there is an incidental or subordinate function in sports.

You contend that the fact that a glove may be used for purposes other
than sporting activities does not prevent it from being classified as a
glove specially designed for use in sports. You further assert that the
test for principal use is not dependent on actual use of the specific
merchandise at issue but rather the principal use of that \"class or
kind\" of merchandise to which the goods belong. Determining whether
goods fall into a particular \"class or kind\" of merchandise, requires
consideration of certain commercial factors, as enumerated by the court
in *United States v. Carborundum Co.*, 63 C.C.P.A. 98, 102, 536 F.2d
373, 377, cert. denied, 429 U.S. 979, 50 L. Ed. 2d 587, 97 S. Ct. 490
(1976). The factors cited are: the expectation of the ultimate
purchaser, channels of trade, general physical characteristics,
environment of sale, economic practicality of so using the import, and
recognition in the trade of this issue.

In HQ 963746, dated May 16, 2001, we applied the *Carborundum* factors
in finding that disposable latex gloves for non-medical (industrial) use
and medical use latex gloves were not of the same \"class or kind\" of
merchandise. In that ruling, the gloves for both the industrial use and
medical use were made on the same machines and were composed of the same
materials. In fact, the only differences between the gloves were the
higher leak resistance and degradation qualities of the medical use
gloves. Essentially, the quality differences and marketing of the gloves
distinguished the medical use gloves from the industrial use gloves.

Customs determined in HQ 963746 that while any particular glove for
industrial use is likely to be physically exactly like a medical use
glove, a given box of industrial use gloves would likely contain a
higher number of defective gloves than a box of the medical use gloves.
In this case, the subject gloves resemble gloves designed specially for
sports, with features that include synthetic leather material on the
palm, coated fabric reinforcements, knitted fabric fourchettes, and an
elasticized wristband with a rubberized tab closure secured with hook
and loop fasteners. However, it has not been shown how the individual
features or accumulation of them contribute to either the sport of
football or automobile racing.

In HQ 963746, the expectation of the ultimate purchaser of the medical
gloves was the assurance of a higher quality product to the lower
quality of the industrial use gloves. In this case, the ultimate
purchaser expects that the subject gloves will provide necessary
protection to the hands in an industrial workplace environment.

Unlike the latex gloves in HQ 963746, where the industrial use gloves
were sold through the same retailers as the medical use gloves, the
subject gloves are sold through different channels of trade than gloves
used for sports. While the subject gloves are sold through retailers in
the industrial and safety industries, gloves specially designed for
sport are sold through retailers like sporting goods stores and outdoor
outfitters. Moreover, as the industrial gloves did not enter the same
industries as the medical use gloves in HQ 963746, the subject gloves do
not enter the same trades as gloves designed specially for use in sport.

In HQ 963746, we determined that the distinctions were based on real
differences in the use of the gloves, whether or not any particular
glove from a box labeled \"not for medical use\" could theoretically
form an effective barrier against blood-borne pathogens and other bodily
fluids. The same holds true in this case: the subject gloves which have
been designed, marketed and sold for industrial uses are distinctly
different than those used in sports whether or not they could
theoretically be used in football or racecar driving.

After determining that the products were actually different in HQ
963746, we concluded that they did not belong to the same class or kind
of merchandise. Similarly, balancing the *Carborundum* factors in this
case reveals that the subject gloves are not of the same class or kind
of merchandise as those specially designed for use in sport.

Finally, you cite NY F80802, dated January 11, 2000 and assert that the
subject gloves should be viewed as specially designed for use in sport
like the gloves considered in that ruling. Upon review of that ruling,
we have determined that the holding is incorrect. The gloves considered
in that case should not have been classified as being specially designed
for use in sports based on the reasoning set forth in this ruling. We
are currently in the process of revoking that ruling and it therefore is
not controlling on this case.

As the gloves under consideration are not specially designed for use in
sports, they would not be properly classified in subheading
6216.00.4600, HTSUSA. The subject gloves are properly classified in
subheading 6216.00.5820, HTSUSA, as \"Gloves, mittens and mitts: Other:
Of man-made fibers: Other: With fourchettes, Other.\"

HOLDING:

NY G87681, dated April 4, 2001, is hereby AFFIRMED.

Based on the foregoing, the subject merchandise is classified in
subheading 6216.00.5820, HTSUSA, which provides for \"Gloves, mittens
and mits: Other: Of man-made fibers: Other: With fourchettes, Other.\"
The applicable rate of duty is 21 cents per kilogram plus 10.5 percent
*ad valorem* and 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)]{.underline},
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)]{.underline}
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,

John Durant, Director

Commercial Rulings Division