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HQ 958710

April 8, 1996

CLA-2 RR:TC:FC 958710 ALS


TARIFF NO.: 9506.99.6080

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.


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.

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.


What is the proper classification of protective gear designed for use in the sport of in-line skating and for roller street hockey?


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.


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.


John Durant, Director
Tariff Classification

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