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HQ 958387




April 8, 1996

CLA-2 RR:TC:FC 958387 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.99.6080

Mr. Mark Laumann
Fritz Companies, Inc.
Customs Broker
1325 Eagandale Court, Suite 120
Eagan, MN 55121

RE: Protective Gear for Use in the Sport of In-line Skating

Dear Mr. Laumann:

This is reference to your letter of August 25, 1995, to the Area Director of Customs, New York Seaport, requesting a binding ruling regarding the classification of the subject protective gear. Your request suggests that the protective gear be classified in conformity with New York Ruling Letter (NYRL) 895546 of March 28, 1994 and Headquarters Rulings Letter (HRL) 957120. Your request was referred to this office for consideration.

FACTS:

The articles under consideration are protective gear used by in- line skaters to protect their knees, elbows and wrists against impact and abrasion injuries. The knee and elbow pads are constructed of a combination of man-made fibers, molded plastic, foam padding and Velcro fasteners. The wrist guards are constructed of a combination of knit and mesh man-made fibers, with Velcro fastener straps and molded plastic inserts. The wrist guards do not contain fourchettes. The items are stated to be marketed solely for use by in-line skaters. The request suggests that classification under subheading 9506.99.6080, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), is incorrect and is in conflict with prior Customs rulings.

ISSUE:

What is the proper classification of protective gear utilized in the sport of in-line skating?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

The articles under consideration are protective gear which are utilized to protect the wearer while engaging in the sport of in-line skating. In considering the proper classification of these items we have reviewed subheadings 9506.70.2000 and 9506.99.6080, HTSUSA. The first noted subheading provides for "ice skates and roller skates, including skating boots with skates attached; parts and accessories thereof;." We note, without discussion, that the subject articles are not skates, skating boots with skates attached or parts of skates. Thus, in order for the protective gear to be classified in subheading 9506.70.2000, HTSUSA, it must be considered as accessories of skates or skating boots.

As noted in Headquarters Ruling Letter (HRL) 956582, date March 14, 1995, an accessory is an article that is related to the primary article and is intended for use solely or principally with that primary article. The articles in that case were bands of knit terry cloth with a protective insert of either rigid plastic or closed-cell foam rubber. They were for use in various sports, e.g., baseball, football. These items were marketed in a similar manner to the instant protective gear insofar as they were to help avoid injuries and bruises. It was proffered therein that these bands were accessories to the sports clothing utilized in playing the particular game. We concluded that the bands were not related or connected to a primary article and were not intended for the sole or principal use as a clothing accessory and that they were protective equipment classifiable in subheading 9506.99.6080, HTSUSA.

We have noted that the term "accessory" is not defined in either the HTSUSA or the Explanatory Notes to the Harmonized System (EN). We, however, have repeatedly noted that an - 3 -
accessory is, in addition to being an article related to a primary article, is used solely or principally with that article. We have also noted that an accessory is not necessary to enable the goods with which they are used to fulfill their intended function. They are of secondary importance, not essential of themselves. They, however, must contribute to the effectiveness of the principal article (e.g., facilitate the use or handling of the principal article, widen the range of its uses, or improve its operation). (See HRL 953896, dated February 2, 1994 and HRL 950166, dated November 8, 1991). We have also noted that Webster's Dictionary defines an accessory as an object or device that is not essential in itself but adds to the beauty, convenience, or effectiveness of something else.

While the subject pads and guard protect the wearer from injury, they do not contribute to the effectiveness of the in-line skates by making them faster or smoother, or add any other capabilities to the skates. In other words, even though the protective gear may have a psychological effect on the wearer, it does not enhance the capabilities of the skates.

In order to ascertain first hand the method of marketing of this gear we visited several major sporting goods stores and a warehouse store. We observed the method of display and spoke to the professional staff in the sporting goods stores. We were unable to confirm that the gear is marketed as accessories to in-line skates. The items are marketed as protective gear or protective equipment. Retail advertising confirms such marketing method. While the packaging for the protective gear indicates that it is recommended for in-line skating, there was a lack of reference to such gear on the boxes containing such skates and the owner's manuals and other material in such boxes, when referring to such gear, referred to it as protective gear and not accessories to the skates. We also noted that the literature from some manufacturers indicates that the gear was suitable for other sports, e.g., skateboarding. This empirical observation confirmed our prior opinion that this protective gear is not an accessory to in-line skates.

We next compared subheading 9506.70.2000, HTSUSA, to other subheadings in heading 9506. While there is a similarity among these subheadings, we noted one significant difference. Whereas the other subheadings generally include equipment related to a specific sport or activity, e.g., baseball articles and - 4 -
equipment, in their coverage, subheading 9506.70.2000, HTSUSA, does not include a provision for equipment. Since we must presume that the drafters of that tariff provision intended to omit a reference to equipment and that it was not an oversight, we considered what other subheading might be applicable to the subject gear. We also concluded that the protective gear, while not necessary for the sport of in-line skating, was specially designed protective equipment for that sport.

In Cruger's inc. v. United States, 12 Ct. Customs Appeals. 516,519, T.D. 40730(1925), the Court indicated "the term equipment applies to those articles that are so essential or necessary to the game as to make it impossible to play the game without them." It further noted that the term "equipment" included inanimate objects ordinarily used and needed or required for the safe, proper, and efficient taking of physical exercise and efficient playing of any indoor or outdoor ball game or sport. Subsequently, in Slazengers, Inc. v. United States, 33 U.S. Customs Ct. Rpts. 338, Abs. 58323 (1954), the Court concluded that articles which serve "no other purpose but to aid in a safer and more efficient game...are within the designation of 'equipment'." In American Astral Corporation v. United States, 62 U.S. Customs Ct. Rpts. 563, 571, C.D. 3827 (1969), after referencing a tariff classification study, the Court concluded "...the statutory designation of "equipment" is satisfied once it is shown that the article is specially designed for use in the game or sport." (See also Nichimen Co., v. United States, 72 U.S. Customs Ct. Rpts. 130, C.D. 4514 (1974)).

Consequently, "equipment" for purposes of the sports provision of heading 9506 is generally considered to include not only those articles that are essential or necessary to the play of a game or sport but the gear specially designed for use by the player in connection with the game or sport. Accordingly, the instant protective gear, being specially designed for use in connection with the sport of in-line skating, is skating equipment for tariff purposes and is classifiable in the residual provision of heading 9506. Rulings conflicting with this conclusion, including those noted in your letter, will be modified by separate action.

HOLDING:

Protective articles such as wrist guards without fourchettes, elbow pads and knee pads primarily designed to be used in the sport of in-line skating and composed of plastic materials and binding straps with Velcro fasteners are - 5 -
considered equipment for that sport and are classifiable in subheading 9506.99.6080, HTSUSA. Merchandise so classifiable is subject to a general rate of duty of 4.5 percent ad valorem.

Sincerely,

John Durant, Director
Tariff Classification

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