CLA-1 CO:R:C:G 085523 KWM
TARIFF: 9506.11.4000
Donna Gaston Carpenter
Burton Snowboards
Manchester Center, Vermont 05255
Re: Request for Reclassification
Dear Ms. Carpenter,
We have received your letter dated August 22, 1989,
requesting "duty reclassification" for snowboard skis. No sample
was submitted with your request, although we have received copies
of several publications relating to snowboard skis and the snow
skiing industry. For the reasons detailed below, we agree with
your assertion that snowboard skis are properly classified in
subheading 9506.11.4000, HTSUS.
FACTS:
On January 15, 1987, our New York office issued to you a
ruling letter classifying snowboard skis to be imported from
Austria. That letter provided a binding tariff classification
under the Tariff Schedule of the United States (hereinafter
"TSUS"), the tariff schedule in effect at that time. It also
provided, for advisory purposes only, a prospective
classification under the Harmonized Tariff Schedule of the United
States Annotated (hereinafter "HTSUS"). Since the HTSUS
classification was clearly denoted as advisory only, and not
subject to challenge, we regard your letter of August 22, 1989,
as a new and separate request for a binding classification
ruling under the HTSUS.
Your letter refers to the goods imported in this case as
"snowboard skis". You have not indicated the country of origin
for the snowboard skis in question. The information submitted
with your letter indicates that snowboard skis are similar to
traditional alpine skis in that they possess some of the same
characteristics. In addition, the materials and construction
techniques used to manufacture both types of skis is almost
identical. However, there are two primary distinctions between
alpine and snowboard skis: (1) snowboard skis are shorter and
wider than alpine skis, and (2) snowboard skis are sold and used
singly rather than in pairs. Although snowboard skis utilize
bindings for fastening the feet to the board, we understand that
the snowboard skis in question are imported without bindings
attached. Bindings are imported separately, and are not included
in this classification request.
ISSUE:
How are snowboard skis classified under the Harmonized
Tariff Schedule of the United States?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the
United States (hereinafter "HTSUS") is made according to the
General Rules of Interpretation (hereinafter "GRI(s)") 1 through
5. The systematic detail of the Harmonized System is such that
virtually all goods are classified by application of GRI 1, that
is, according to the terms of the headings of the tariff schedule
and any relevant Section or Chapter Notes. Then, if GRI 1 fails
to classify the goods, and if the headings and legal notes do not
otherwise require, the remaining GRIs may be applied, taken in
order.
At the outset, it is clear that these goods are an
"article" or piece of "equipment" for "athletics . . . or
outdoors sports" of heading 9506, HTSUS. In addition, the nature
of the goods in this case implies use for a snow sport or snow
related activity. Therefore, subheadings 9506.11 through
9506.19, HTSUS, may be eligible for classification of the goods.
Those subheadings, primarily 9506.11, HTSUS, provide, in
pertinent part:
Articles and equipment for gymnastics, athletics, other
sports or outdoor games . . . . . . . . . . . . . . .
9506 Snow-skis and other snow-ski equipment; parts and
accessories thereof:
9506.11 Skis and parts and accessories thereof,
except ski poles:
9506.11.20 Cross-country skis . . . . . . . .
9506.11.40 Other skis . . . . . . . . . . . .
Neither the Legal Notes nor the Explanatory Notes prescribe any
criteria for the inclusion of goods in subheadings 9506.11
through 9506.19, HTSUS. Within the terms of the heading, the
only qualification is that the goods fall within the meaning of
"snow skis", specifically "skis" or "other [than cross-country]
skis". Failing classification in subheading 9506.11.4000, HTSUS,
snowboard skis would fall within the "basket" provisions of
subheading 9506.99.6080, HTSUS, as Other athletic articles and
equipment . . .; Other; Other; Other; Other.
Subheading 9506.11, HTSUS, embraces elements of a use
provision and an eo nomine provision. In part, the provision
describes skis of a class or kind principally used to glide over
snow. However, the principal issue in this instance centers
around the determination of whether or not snowboard skis qualify
as "skis" as that term is used in the nomenclature.
It is well settled that the meaning of a particular tariff
term is a question of law, while the determination of whether a
particular item fits within that definition is a question of
fact. Hasbro Industries Inc. v. United States, 879 F.2d 838, 840
(Fed.Cir. 1989). The meaning of an eo nomine classification is
determined as of the time of enactment of the tariff provisions.
However, that meaning is not fixed in that an eo nomine provision
includes all articles subsequently created which come within its
scope. FAG Bearings, Ltd. v. United States, 9 CIT 227, 228
(1985) (citations omitted). To determine the meaning of a tariff
term at the time of enactment, Customs looks to indices of
Congressional intent, and classifies goods to carry out that
intent. However, in this case, we have found no clear indication
of Congressional intent with regard to these items.
Failing a clear statement of Congressional intent, tariff
terms are construed in accordance with their common and
commercial meanings, which are presumed to be the same. Nippon
Kogaku (USA) Inc. v. United States, 673 F.2d 380 (1982).
Congress is presumed to know the language of commerce and to have
framed tariff acts so as to classify commodities according to
general usage and denomination of the trade. Nylos Trading
Company v. United States, 37 CCPA 71, C.A.D. 422 (1949). To
ascertain the common [and commercial] meaning [of a tariff term],
in addition to relying upon its own understanding of the terms
used, the courts may consult dictionaries, lexicons, the
testimony of record, and other reliable sources of information as
an aid to its knowledge. Pistorino & Co., Inc. v. United States,
461 F.Supp. 331, 334 (1978).
In this case, we have reluctantly concluded that no precise
definition of the term "ski" can be determined. In reaching that
conclusion, we have considered a number of factors.
We note that the status of snowboard skis has changed since
the inception of the sport a few years ago. The material
supplied by you with regard to professional ski instruction, the
inclusion of snowboard skis in the ASTM classifications for snow
skiing, and the actions by ski area administrators toward
snowboard ski safety regulation all indicate that snowboard skis
have become a part of the snow skiing industry. While snowboard
skis may not have gained unconditional acceptance among snow
skiing purists, we do not consider the relative newness of
snowboard skiing to be an impediment to classification of
snowboard skis within the snow skiing headings of the tariff
schedule. However, it must influence a determination whether
snowboard skis fall within the common or trade meaning of "skis".
In addition, snowboard skis, are, for the most part,
similar to traditional skis in the materials used, the production
processes and construction methods used, and applicable
terminology. The shape and form of snowboard skis, their use in
the same recreational areas, the interaction of the users, and
the nature of the goods all suggest a very close relationship
between snowboard skis and traditional skis. However, clear
distinctions lie in the differing lengths, widths, and the
mechanics of use of the goods (i.e., snowboard skis are used
singularly, rather than in pairs). We do not consider these
differences significant enough to, prima facie, prevent their
classification as "skis" in subheading 9506.11.4000, HTSUS. In
fact, we note that traditional forms of skis also vary in length
and width, albeit not to the degree that snowboard skis do.
Lastly, we have made reference to the dictionary definitions
of "skis", a representative definition of which states:
ski - 1.a. One of a pair of long, flat runners of wood,
metal or plastic that curve upward in front and may be
attached to a boot for gliding or traveling over snow.The
American Heritage Dictionary, Second College Edition (1985).
With the exception of the reference to "one of a pair",
snowboard skis fit within this definition. As we noted above, we
do not consider the use of snowboard skis in a singular manner to
be determinative to eo nomine classification. However, as
discussed below, it must influence any factual determination of
whether snowboard skis are considered "skis" in the tariff
schedule. We also note that dictionary definitions describe the
traditional type of ski. That distinction, like the absence of
Congressional intent, may be attributable to the relatively
recent onset of snowboard ski popularity, i.e., that these are
new commodities under the tariff schedule.
Having determined that no precise common or trade definition
exists for "skis", we are faced with a factual determination,
based on the submissions in this case and upon our own
understanding of the tariff schedule, of whether snowboard skis
fall with subheading 9506.11.4000, HTSUS. The basic requirement
for classification of a new product such as these, under a given
eo nomine heading is that the article possess an essential
resemblance to the one named in the statute. If the essential
character of the article is preserved or only incidentally
altered, an unlimited eo nomine designation will include the
goods. FAG Bearings, supra, at 229.
It is true that snowboard skis have certain physical
characteristics not possessed by traditional skis, and vice
versa. However, we are of the opinion that these characteristics
merely serve to distinguish the two items. Snowboard skis, are,
simply put, a specialized form of the traditional "ski".
Discussions with persons familiar with the industry have
indicated to us that, in the trade, "skis" in general may be
considered to be composed of at least two different types: cross-
country skis and alpine skis. It is unsettled whether or not
snowboard skis, or other specialty skis (for example those
designed specifically for ski jumping) are properly considered to
be separate types of "skis" or are actually sub-categories of
alpine skis. That determination is beyond the scope of this
ruling, and we do not make such a determination here. Regardless
of that determination, we are of the opinion that snowboard skis
are a "ski" of some type.
Lastly, we have considered the use of snowboard skis in
comparison with the use of traditional skis, particularly
traditional alpine skis. While it is true that the mechanical
and physical use of snowboard skis is distinctly different from
that of traditional alpine skis, we are of the opinion that these
differences only incidentally influence the characteristics of
"skis"; that is, to provide a method for traveling or gliding
over snow by use of one or a pair of a long, narrow devices
attached at the foot.
In summary, it is our opinion that the meaning of the term
"snow skis" is imprecise such that a clear definition of that
term cannot be determined. That it is an item used for athletics
or other sports, particularly for traveling of gliding over snow
is clear from the terms of the heading, and from common or trade
usage. And, while we consider the factual determination of
whether a snowboard ski is within the meaning of the eo nomine
term "skis" to be a close call, we are of the opinion that "skis"
does include items such as those at issue here. That
determination is based on the finding that snowboard skis possess
an essential resemblance to traditional skis, coupled with the
growing acceptance of snowboard skis as a legitimate form of snow
sport recreation in the same class as traditional skiing.
HOLDING:
Having determined that snowboard skis are "snow skis" within
the meaning of that term as used in the tariff schedule,
snowboard skis, without bindings, are classified in subheading
9506.11.4000, HTSUS, as "Other skis". As such, they are dutiable
at the rate of 5.1% ad valorem.
John A. Durant
Director
Commercial Rulings Division