CLA-2 RR:TC:FC 958710 ALS
Port Director of Customs
U.S. Customs Service
300 S. Ferry St.
Room 1001
Terminal Island, CA 90731
RE: Application for Further Review of Protest 2704-95-102099, dated June 28, 1995, Concerning Protective Gear for In-line Skating
Dear Ms. Adams:
This in reference to a protest filed against the decisions
of April 14 and 21, 1995, concerning multiple entries of
protective gear for the sport of in-line skating. Counsel has
provided a sample package of a set of the protective gear.
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 while in-line skating or playing
street hockey on in-line skates. The knee and elbow pads consist
of a molded plastic shell protector attached to a slip-on elastic
sleeve. Velcro straps at top and bottom of the pads hold them
secure and in place. The knee pads are slightly larger than the
elbow pads. The wrist guards, which do not have fourchettes, are
constructed primarily of a knitted man-made material with
artificial leather stitched to the areas of stress for
reinforcement. There is a thumb hole in each guard which
distinguishes the left from the right hand. The wrist guard
covers the palm of the hand and is held in place by 3 Velcro
straps. The wrist guards have 2 hard molded plastic pieces sewn
into the front and back of the item which function as splints.
- 2 -
The importer packages these articles, which come in adult
and youth styles and sizes, individually and as sets for use in
the sport of in-line skating and roller street hockey. They are
packaged and sold as protective gear for such purposes.
Counsel for the importer suggests that these items are
accessories to in-line skates and should be classified in
subheading 9506.70.20, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) and reference 2 Customs rulings in
support of that position.
ISSUE:
What is the proper classification of protective gear
designed for use in the sport of in-line skating and for roller
street hockey?
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
is designed to protect the wearer from injury while engaging in
the sports of in-line skating or street roller hockey. The items
consist of wrist guards without fourchettes, elbow pads and knee
pads. The sample package containing a set of this gear, on its
obverse, indicates that it is "ideal for street hockey and all
types of street skating." The reverse of such package indicates
that one should "Look for the extensive line of (importer's name)
Street Hockey Gear at fine retailers everywhere:." It goes on to
list its products in 3 groupings, i.e., Accessories, Protective
Gear and Sticks. We note that all of the articles which are
under consideration are listed under "Protective Gear" and that
none of them are listed under either "Accessories" or "Sticks."
Since counsel, in its supplemental submittal, indicates that
the subject articles are "accessories" because they are "solely
or principally" suitable for use with roller skates, we initially
considered whether the term "accessory" is applicable to the
instant protective gear. Although the term is not defined in - 3 -
either the HTSUSA or the Explanatory Notes to the Harmonized
System (EN), Customs rulings are replete with discussions of the
meaning of such term. For example, 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 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 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 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. While the
instant protective gear may protect the wearer from injury, it
does 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, although 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. We noted that 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 the
skates and the owner's manual and other literature, in such - 4 -
boxes, when referring to the gear, referred to it as protective
gear and not accessories to the skates. The obverse of the
package in the instant case indicates that the articles are for
use while playing street hockey and all types of street skating.
The reverse of the this package indicates that these items are
primarily for street hockey. We also noted that some
manufacturers indicate that the gear was suitable for
skateboarding. This empirical observation confirmed our prior
opinion that this protective gear is not an accessory to in-line
skates.
We next compared the provisions of subheading 9506.70,
HTSUSA, to other subheadings in 9506. We noted that it is
similar to the other provision 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
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 as 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 - 5 -
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
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.
Since the classification indicated above is the same as the
classification under which the entry was liquidated, you are
instructed to deny the protest in full.
A copy of this decision should be attached to the Customs
Form 19 and provided to the protestant as part of the notice of
action on the protest.
In accordance with Section 3A(11)(b) of Customs Directive
099 3553-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be provided by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entries in accordance with this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Custom Rulings Module in ACS and the public via
the Diskette Subscription Service, Freedom of Information Act and
other public access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division