CLA-2 RR:TC:FC 958456 ALS
Mr. Robert Torresen
Attorney at Law
Powell, Goldstein, Frazier and Murphy
1001 Pennsylvania Ave, N.W.
Washington, DC 20004
RE: Reconsideration of New York Ruling Letter (NYRL) 812428, dated July 19, 1995, Concerning the Classification of
Protective Gear for In-Line Skating
Dear Mr. Torresen:
This is in reference to your letter of September 18, 1995,
requesting reconsideration of the subject ruling. The requested
reconsideration was also the subject of a meeting on November 13,
1995 and a further submittal dated December 15, 1995.
FACTS:
The articles under consideration are 3 items of protective
gear primarily designed to be used in in-line skating. These
items are a wrist guard, elbow pad and knee pad and are marketed
under the brand name "City Gear ." The wrist guard, which does
not have fourchettes covering part or all of the fingers, is
constructed of polypropylene in the wrist and upper hand strap
areas. The back hand pad fiber content is neoprene triple
laminated with 3 mm closed cell foam, with a mesh knit. The
thumb gusset is polyester and elastic. The back hand face is 100
percent nylon, coated with PVC. The binding and the seal label
are nylon. The elbow pad has a face of woven nylon mesh with PVC
coating. The lining is a knit mesh made from polyester. The
padding consists of 19 mm perforated closed cell foam. The elbow
pad has 39 mm straps of polyester elastic belting. The knee pads
have a face of woven nylon mesh with PVC coating and a lining of
polyester knit mesh. The Velcro closure straps are polyester
elastic belting. Counsel believes that the subject protective - 2 -
gear is classifiable in subheading 9506.70, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA).
ISSUE:
How are the subject protective gear items, which are
utilized while doing in-line skating, classifiable?
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 various pieces of
protective gear marketed under the label "City Gear " and
designed to protect in-line skating participants from injury
while skating. The items consist of wrist guards (without
fourchettes), elbow pads and knee pads. The packages containing
these items describe the products as being "for protection
against in-line skating impacts" and warns, in a copyrighted
logo, "Asphalt Bites - Wear the Gear ." Counsel states that
these articles facilitate the use and increase the effectiveness
of the skates insofar as it permits the skaters to skate more
relaxed and with greater confidence. In this regard counsel
believes that the articles are properly accessories to the skates
and that they should be classified in subheading 9506.70, HTSUSA,
the provision for "ice skates and roller skates, including
skating boots with skates attached; parts and accessories
thereof;." It is stated that the protective gear is marketed as
accessories.
In support of its position counsel, after noting that the
term "accessory" is not defined in either the HTSUSA or the
Explanatory Notes to the Harmonized System (EN), references
several Customs rulings. It is noted that in Headquarters Ruling
Letter (HRL) 956582, dated March 14, 1995, an accessory is stated
to be 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 to be used in the playing of various sports,
e.g., baseball, football. These items were marketed in a similar
manner to the instant "City Gear " items insofar as they were to - 3 -
help avoid injuries and bruises. It was proffered that these
bands were accessories to the sports clothing utilized in playing
the particular game. We concluded, therein, that those 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 repeatedly noted that while the term "accessory" is
not defined in either the HTSUSA or the EN, it is generally
understood to mean an article which is not necessary to enable
the goods with which they are used to fulfill their intended
function. They are of secondary importance, but must, however,
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. 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. Counsel states
that the protective gear meet these requirements since they
permit the wearer to attain higher speeds and perform more
difficult maneuvers than they would otherwise, thereby
contributing to the effectiveness of the in-line skates. We do
not agree with that conclusion. While the protective equipment
may have a psychological effect on the wearer, it does not
contribute to the effectiveness of the in-line skates by making
them faster, smoother, or add any other capabilities to the
skates. If the pads somehow increased the effectiveness of the
skates, we wonder why only half of in-line skaters use them.
In order to ascertain first hand the method of marketing of
these pads 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 protective gear is marketed as
accessories to in-line skates. It is marketed as protective gear
or protective equipment. Retail advertising confirms such
marketing method. The importer's 1996 product guide does not
include the gear under the group of items referred to as
accessories. It only lists items directly related to the skates,
e.g. blade tool, skate tote, power strap, skate grip, lace kits
in that category.
- 4 -
During the course of our empirical observation we noted that
while the packaging for the protective gear indicates that it is
intended to reduce the risk of injury, the boxes in which the in-line skates are sold do not reference any need to wear protective
gear. The owner's manual included with the skates, under the
heading "SkateSmart ", indicates that the product dealer "has a
full line of protective gear specially recommended for in-line
skating." Such products are not listed in the "...Replacement
Parts and Accessories" portion of that manual. The packaging for
similar articles from other manufacturers notes that this type of
gear, although it may be designed for use in in-line skating, is
also for use in other sports, e.g., skateboarding. They are used
to protect the wearer from injury.
Based on the above we have concluded that the protective
gear is not accessories to in-line skates. Since the gear is
also not parts of in-line skates we have also concluded that they
are not classifiable as parts of skates. Thus, since the gear is
not skates, or parts or accessories, they are not classifiable in
subheading 9506.70, HTSUSA.
We next compared the provisions of subheading 9506.70 to
other subheadings in heading 9506. We noted that it is similar
to the other provisions except that the items named in those
other provisions include equipment related to a specific activity
or sport, e.g., baseball articles and equipment. Since both the
importer and Customs, in the NYRL 812428, agreed that the in-line
skating pads are classifiable in heading 9506, HTSUSA, albeit not
in subheading 9506.70, we next considered how the gear might be
classifiable. The NYRL concluded that it was equipment for in-line skating and classifiable in subheading 9506.99.6080, HTSUSA,
as "Articles and equipment for general physical exercise,
gymnastics, athletics, other sports (including table-tennis) or
outdoor games...parts and accessories thereof: Other :Other:
Other."
Counsel disagrees with such classification and has noted
numerous rulings in which protective gear is worn by the user of
the equipment and that it never comes in contact with the
activity equipment, e.g. football pads, hockey neck protector.
We note that all the referenced rulings place the articles in a
subheading which contains a provision for equipment. We disagree
with counsel's conclusion that the term "equipment" is irrelevant - 5 -
and that the subject pads do not meet the definition of
equipment. Counsel references the following statement in the
discussion portion of HRL 951640, dated July 16, 1992 in support
of its position:
While it may be worn as a neck support for increased comfort
or to compensate for an existing weakness in the physical
condition of the player, it is not equipment necessary in
the play of the sport.
A further reading of that ruling, particularly the holding,
reveals that while the neck protector was not an article of
equipment "necessary in the conduct or pursuit of a sport" it
nevertheless was a "specially designed protective equipment for
use in the sport of ice hockey and field-hockey" and that it was
classifiable under the provision for ice-hockey and field-hockey
articles and equipment. Thus, articles need not be necessary to
be included within the scope of the term equipment.
Counsel further references Cruger's Inc. v. United States,
12 Ct. Customs Appls. 516, 519, T. D. 40730 (1925) in support of
the proposition that Congress intended to limit "the term
equipment to those articles that are so essential or necessary to
the game as to make it impossible to play the game without them."
Our reading of that decision differs. While the Court noted that
the term "equipment" included items necessary to accomplish a
special object or purpose and that articles which were dictated
by fad, fancy, or fashion, can not be properly called equipment,
its decision did not end there. The Court further noted that the
term "equipment" as used in the cited tariff provision 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'." Further, the Court 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,
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., Inc. v.
United States, 72 U.S. Customs Ct. Rpts. 130, C.D. 4514 (1974)).
- 6 -
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. Rulings conflicting with this
conclusion will be modified by separate action.
You indicated that your client detrimentally relied on an
earlier ruling it received on similar merchandise when
contracting for the instant merchandise. You indicated that you
intend to submit a claim for relief based on such reliance. We
will consider your request for relief pursuant to the provisions
of section 177.9, Customs Regulations (19 CFR 177.9) when your
written request, along with supporting information and
documentation, is received.
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 closures are 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.
NYRL 812428, dated July 12, 1995, is affirmed.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division