Classification of waterproof cowhide leather motorcycle gloves

HQ H020187 March 31, 2008 CLA-2: OT:RR:CTF:TCM H020187 KSH CATEGORY: Classification TARIFF NO.: 4203.29.1500 Sermin Womack UPS Trade Management Services, Inc. 12380 Morris Road Alpharetta, GA 30005 RE: Classification of waterproof cowhide leather motorcycle gloves Dear Ms. Womack: This is in reply to your request of November 16, 2007, on behalf of your client, Hugger Glove Company, regarding the classification of waterproof cowhide leather motorcycle gloves under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was included with your request. This letter is being issued for prospective transactions pursuant to 19 CFR 177.1. FACTS: The merchandise at issue consists of five styles of waterproof leather motorcycle gloves. They are identified as styles CG/CG-L “Classic Gauntlet”, DPRG/DPRG-L “Padded Knuckle Riding Glove”, HDF “Unlined fingerless glove, PLU “Perforated Leather Unlined Glove and BRG/RG-L “Basic Riding Glove.” Each of the five styles consist of a complete palm-side and a complete backside of cowhide leather, fourchettes and treated leather that makes the gloves waterproof. Style CG/CG-L also has a knit fabric liner, an inner waterproof barrier, inner foam padding on the center of the palm and backside, a partially elasticized wrist and an extended gauntlet. Style DPRG/DPRG-L has a knit fabric liner, an inner waterproof barrier, additional leather reinforcement at the center of the palm and at the thumb/forefinger crotch, an elasticized wrist with an adjustable hook and loop fastener at the backside wrist and three strips of rubber/plastic inner foam padding at the backside knuckles. Style HDF is a half fingered glove that features inner foam padding on the palm side, a perforated backside for ventilation and an adjustable hook and loop fastener on the backside wrist. Style PLU features inner foam padding on the palm side, a perforated backside for ventilation, a partially elasticized wrist and an adjustable hook and loop fastener at the backside wrist. Style BRG/RG-L features an inner foam padding on the palm side and an elasticized wrist. ISSUE: Whether the motorcycle gloves are classified in subheading 4203.21, HTSUS, as gloves, mittens and mitts, of leather or of composition leather, specially designed for use in sports or in subheading 4203.29, HTSUS, as other leather gloves. 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). Subheading 4203.21, HTSUS, provides for gloves, mittens and mitts, of leather or of composition leather, specially designed for use in sports. As this is a "use" provision, determining whether an article is classifiable in subheading 4203.21, HTSUS, 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 HTSUS, examined the features of the article, its capabilities and its uses. Id. at 473. The case suggests that to be classifiable in subheading 4203.21, HTSUS, the subject gloves must be shown to be, in fact, specially designed for use in a particular 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, CBP 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 HQ 089849, dated August 16, 1991, CBP 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, 76 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, CBP 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. The term "sport" appears to also encompass activities in which individuals engage professionally (i.e., professional sports). In HQ 964901, dated January 31, 2002, CBP 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. When there is doubt as to whether a certain activity constitutes a sport for tariff classification purposes, CBP balances a range of factors, which include the degree of bodily exertion, the use of traditional rules, the degree of competitiveness, the origin of the activity, and common recognition as a sport. In HQ 962745, dated October 25, 1999, in determining whether the activity of “dancing” is a sport, CBP stated that while it may entail competition, require athleticism, involve physical and mental exertion, etc., for classification purposes, dancing is not a sport, notwithstanding news accounts about the International Olympic Committee taking action to grant provisional recognition to the “sports” of ballroom dancing and surfing in the Games program. In HQ 965712, dated August 28, 2002, we likewise found that “lumberjacking” is not a sport. As “lumberjacking” does not originate from a recreational pastime as activities typically considered sports, we found that “lumberjacking” is most accurately described as an occupation, not a pastime. In that ruling, we noted that while “lumberjacking” contests have stemmed from the trade, such events fell short of establishing “lumberjacking” as a sport for tariff classification purposes. Moreover, we found that while some may consider “lumberjacking” to be a "pastime" and a "physical activity engaged in for pleasure," it has neither gained mainstream acceptance as a sport nor is it a sport in the traditional sense of the word. Thus, we concluded that although the gloves at issue in HQ 967512 may have had features useful in the activity of “lumberjacking,” they were not specially designed for use in sports. In HQ 965692, dated September 18, 2002, we recognized that motorsports racing is a sporting activity for purposes of tariff classification and noted that pit-crew members are an integral component of the sport. Because the gloves under consideration were specially designed for the mechanics that work in the pit-crew, we classified the gloves as being specially designed for use in sports. However, upon further consideration of the role of pit-crew members, CBP concluded that while they are an integral component of the team, the actual role and function of a mechanic do not constitute a sporting activity. CBP has consistently and uniformly classified motorcycle racing gloves as gloves that are specially designed for use in sports if the features of the gloves, as well as evidence of proper advertising and marketing, can demonstrate that the gloves are specially designed for motorcycle racing. See HQ 954704, dated November 12, 1993; HQ 951219, dated June 26, 1992; NY 889364, dated September 15, 1993, NY L86983, dated September 2, 2005; NY F86572, dated May 23, 2000; NY I80201, dated April 19, 2002; NY I87332, dated October 30, 2002; and NY 861321, dated April 10, 1991. In the instant matter, the marketing information found on your website does not evidence that the gloves are specially designed for use in sports. The marketing information references the motorcycle and sport bike industry but there is no evidence that distinguishes the gloves for motorcycle racing, which has been recognized as a sport by this office. See HQ 954704, dated November 12, 1993, HQ 951219, dated June 26, 1992, NY 889364, dated September 15, 1993, NY L86983, dated September 2, 2005 and NY F86572, dated May 23, 2000. You note that motorcycling is an invitational category for the World Games for sports not contested in Olympic Games. We have previously stated recognition by the International Olympic Commission is insufficient to find that motorcycling is a sport. Likewise, motorcycling may be a "pastime" and a "physical activity engaged in for pleasure," but it has neither gained mainstream acceptance as a sport nor is it a sport in the traditional sense of the word. HOLDING: Styles CG/CG-L “Classic Gauntlet”, DPRG/DPRG-L “Padded Knuckle Riding Glove”, HDF “Unlined fingerless glove, PLU “Perforated Leather Unlined Glove and BRG/RG-L “Basic Riding Glove” are classified in heading 4203, HTSUS. They are provided for in subheading 4203.29.1500, HTSUS, 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 (except calfskin) leather: Other: With fourchettes or sidewalls which, at a minimum, extend from fingertip to fingertip between each of the four fingers.” The general, column one rate of duty is 14% ad valorem. Sincerely, Gail A. Hamill, Chief Tariff Classification and Marking Branch