CLA-2 RR:CR:TE 966432 JFS
TARIFF NO: 4203.29.1500; 6216.00.5820
Mr. Jack D. Moon
E. Besler & Company
115 Martin Lane
Elk Grove Village, Illinois 60007
RE: Revocation of NY B85790; Classification of Mechanic’s Gloves; Not Sports Gloves
Dear Mr. Moon:
On June 5, 1997, New York Ruling Letter (NY) B85790, was issued to you on behalf of your client, Midwest Air Technologies, Inc., regarding the classification of two styles of gloves under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). For the reasons that follow, this ruling revokes NY B85790.
Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the proposed revocation of B85790, was published on May 21, 2003, in the Customs Bulletin, Volume 37, Number 21. As explained in the notice, the period within which to submit comments on this proposal ended on June 20, 2003. Two comments were received in response to the proposed revocation.
One commenter appropriately summarizes the Bureau of Customs and Border Protection’s (CBP’s) proposed modification as being “based upon Customs’ determination that the activity for which the gloves are allegedly used – auto mechanic functions in professional or amateur automobile racing – do not constitute ‘sporting activities’ for tariff classification purposes.” The commenter does not “express an opinion concerning whether a person who serves as a mechanic during an auto race is engaged in a ‘sport’ or ‘sporting activity’”. Instead the commenter proposes that CBP formulate and publish a set of standard factors to be evaluated in determining whether gloves are “specially designed for use in sports.” While we are open to considering such factors in the future, the issue in this ruling is whether the auto mechanic in the pit crew is engaged in a sporting activity. Thus, we decline to formulate standard factors at this time.
The other commenter presents evidence that the members of a pit crew are in fact athletes engaged in athletic competition during a race. Therefore, accordingly to the commenter, the instant gloves are “specially designed for use in sports” and should be so classified. This commenter’s arguments are addressed in the LAW AND ANALYSIS portion of this ruling.
FACTS:
In NY B85790, the Bureau of Customs and Border Protection (CBP) considered two pairs of gloves, identified as styles IL-7504 and SP-7502. Style IL-7504 was described as follows:
Style IL-7504 is a full fingered glove with a synthetic leather palm, fourchettes and back of the fingertips. The back of the hand has a three ply construction of man-made mesh fabric, padding and knit liner. The glove features vented fourchettes, and has an elasticized wrist strap secured with a hook and loop fabric tab over a side vent. The essential character of the glove is imparted by the synthetic leather palm.
CBP concluded that “[a]s a result of research by my office, advertising information has been located which indicates that the item is designed for professional mechanics and racing enthusiasts for use during racing.” Accordingly, the glove was classified in subheading 6216.00.4600, HTSUSA, which provides for “Gloves, mittens and mitts: Other: Of man-made fibers: Other gloves, mittens and mitts, all the foregoing specially designed for use in sports, including ski and snowmobile gloves, mittens and mitts.” The general column one rate of duty is 3.1 percent ad valorem.
Style SP-7502 was determined to be identical to IL-7504, except that the palm, fourchettes and backs of the fingers of the glove were composed of split leather. Accordingly, CBP concluded that the leather components imparted the essential character to the glove and classified it in subheading 4203.21.8060, HTSUSA, which provides for “Articles of apparel and clothing accessories, of leather or of composition leather: Gloves, mittens and mitts: Specially designed for use in sports: Other, Other.” The general column one rate of duty is 4.9 percent ad valorem.
ISSUE:
Whether the 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).
Subheadings 4203.21.8060, and 6216.00.46, HTSUSA, provide, in part, for gloves, mittens and mitts, specially designed for use in sports. As these are "use" provisions, determining whether articles are classifiable in subheadings 4203.21.8060, and 6216.00.46, HTSUSA, requires consideration of whether they have particular features that adapt them 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 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. 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 Headquarters Ruling Letter (HQ) 964901, dated January 31, 2002, CBP defines 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.
In HQ 965692, dated September 18, 2002, we recognized that motorsports racing is a sporting activity, and noted that pit-crew members are an integral component of the sport, for purposes of tariff classification. 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 concludes that while they are an integral component of the team, the actual role and function, of a mechanic do not constitute a sporting activity.
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 found that while it may entail competition, require athleticism, involve physical and mental exertion, etc., 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, we found that for classification purposes, dancing is not a sport.
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 those gloves may have had features useful in the activity of “lumberjacking,” they were not specially designed for use in sports.
A mechanic is a professional technician that employs extensive knowledge and technical skills to perform his duties. Being a mechanic requires much more than the mere performing of an athletic activity that is required in almost all sporting activities. There are different levels and types of certification for mechanics that are based on their skill and training. Mechanics receive training and education on the job and at colleges and trade schools. Indeed, there is even an institute to train NASCAR mechanics titled the Nascar Technical Institute. The promotional information at their web-site states as follows:
Nascar Technical Institute in Mooresville, NC is the first technical training school to combine automotive and NASCAR technology delivering hands-on NASCAR training.
The Nascar Technical Institute is a part of Universal Technical Institute (UTI), providing industry customers with professional technicians by offering entry-level, manufacturer-specific and update training in automotive, collision repair and refinishing, and diesel, as well as motorcycle, marine, personal watercraft and heating/ventilation/air conditioning/refrigeration.
At the first ever Nascar Technical Institute, you will learn the basics of
Engine Construction
Body and Aero Applications
Chassis Applications
Body Fabrication
Chassis Fabrication
Dyno Testing for Performance and Durability
The Nascar Technical Institute delivers the necessary training to excel as an entry-level technician, as well as the additional training required to enter the motor sports industry.
www.mechanicschools.com/nascarschool.html. These skills, engine construction, body and chassis fabrication, aero applications, to name a few, are not traditionally associated with sporting activities.
Moreover, the term “mechanic” is defined in Merriam-Webster Online Dictionary copyright © 2002, as:
Function: adjective 1 : of or relating to manual work or skill
Function: noun 1 : a manual worker
These definitions focus on the manual labor aspect of the duties of a mechanic. Nonetheless, they demonstrate that a mechanic’s occupation is not traditionally thought of as a sporting profession, but is instead considered a form of labor or work.
Mechanics, be they pit-crew mechanics or mechanics working in an automotive repair shop, engage in the activity of maintaining and repairing automobiles. Thus, even though a pit-crew member performs his functions under extreme conditions and circumstances, the functions performed are essentially the same as those performed by the mechanic at the local repair shop. Accordingly, because the functions performed by mechanics are not sporting activities, the gloves used by pit-crew mechanics are not “specially designed for use in sports.”
Finally, it cannot be overlooked that the gloves themselves are marketed and sold to average consumers, not just pit-crew mechanics. Indeed, marketing materials advertise that the gloves are sold at Autozone, PEPBOYS, NAPA, Advance Auto Parts, Checker Auto Parts, Schucks Auto Parts, Kragen Auto Parts, O’Reilly, and Car Quest. These are all auto parts retailers that sell auto parts and tools to average consumers and to professional mechanics. Thus, while the gloves were designed with the pit-crew mechanic in mind, most of the sales and revenue are generated by sales to consumers and not those directly involved in auto racing. Moreover, the gloves in question are sold and marketed through construction and industrial suppliers. These suppliers also sell substantially similar gloves that are not classified as being specially designed for use in sports and that are manufactured by competitors of Mechanix Wear.
One commenter has provided considerable evidence in support of the argument that pit-crew members are athletes engaged in athletic activity, and that they are an integral component of the sport of auto racing. The commenter explains that in NASCAR the pit-crew may have as many as fourteen or fifteen members. However only seven are allowed to go “over the wall” to service the car during a pit stop. The seven-member “over-the-wall” crew is comprised of (1) a front tire carrier, (2) a front tire changer, (3) a rear tire carrier, (4) a rear tire changer, (5) a jack man, (6) a gas man and (7) a catch-can person who assists the gas man. The commenter argues that the individuals who fill these positions are hired more for their athletic ability than for their technical skill. Their athletic ability is crucial, according to the commenter, because many races are won or lost in the pit stop.
We do not dispute the importance of the athletic ability of the pit-crew members that go “over the wall.” Nor do we contest that these abilities, mainly speed and agility, enable them to swiftly complete competitive pit stops that are vital to winning the race. That being said, the functions that they perform are inherently mechanical. Moreover, the gloves in question are worn and used by the pit-crew members that remain behind the wall. These members also perform the more traditional and technical duties of mechanics before, during, and after the race. Accordingly, even though the “over-the-wall” pit-crew members may be more active participants in the racing aspect, the duties they perform basically remain those of a mechanic. As these gloves are designed to be used by the pit-crew carrying out mechanic duties, as well as their “over-the-wall” activities, we find that, for classification purposes the gloves are not specially designed for use in sports.
Style IL-7504 is properly classified in subheading 6216.00.5820, HTSUSA, which provides for "Gloves, mittens and mitts: Other: Other: Of man-made fibers: With fourchettes, Other." The general column one rate of duty is 20.8 cents per kilogram plus 10.5 percent ad valorem and the textile restraint category is 631.
Style SP-7502, is classified in subheading 4203.29.1500, 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 (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 percent ad valorem.
HOLDING:
NY B85790, dated June 5, 1997, is hereby revoked.
Style IL-7504 is properly classified in subheading 6216.00.5820, HTSUSA, which provides for "Gloves, mittens and mitts: Other: Other: Of man-made fibers: With fourchettes, Other." The general column one rate of duty is 20.8 cents per kilogram plus 10.5 percent ad valorem and the textile restraint category is 631.
Style SP-7502, is classified in subheading 4203.29.1500, 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 (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 percent ad valorem.
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 your client check, close to the time of shipment, The Textile Status Report for Absolute Quotas previously available on the Customs Electronic Bulletin Board (CEBB) which is now available on the CBP Website at www.cbp.gov.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division