CLA-2 RR:TC:FC 958387 ALS
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.
- 2 -
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
Appeals Division