HQ 954704

November 12, 1993

CLA-2 CO:R:C:T 954704

CATEGORY: Classification

TARIFF NO.: 4203.29.1500

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