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.


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).


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.

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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 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.


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.


John Durant, Director
Tariff Classification
Appeals Division