HQ 957848

August 10, 1995

CLA-2 R:C:T 957848 jb

CATEGORY: Classification

TARIFF NO.: 6116.93.8800

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