CLA-2 CO:R:C:G 086626 KWM
TARIFF: 9506.11.4000; 9506.99.6080
District Director of Customs
U.S. Customhouse
Interstate 87
Champlain, New York 12919
RE: Decision on Application for Further Review of Protest
No. 0712-89-000462, Snowboard Skis
Dear Sir:
This protest was filed against your decision in the
liquidation of four (4) entries, all of which covered shipments of
"snowboard skis" produced in Canada. Our decision follows.
FACTS:
The goods at issue here are "snowboard skis." Snowboard skis
are articles of athletic equipment designed to be attached by
bindings to the feet, and to provide a method for gliding downhill
over snow. They range in size from 125 centimeters to 210
centimeters in length and approximately 26 centimeters in width.
Snowboard skis look like short, wide variations of what we refer
to as the "traditional alpine ski": A front tip or "shovel",
curved upward to plane over the surface of the snow; wide breadth
at the "shoulder" and at the "heel" (trailing end); and a narrow
"waist" or center section. The sides of the snowboard ski are
edged with steel for added control. Certain aspects of traditional
ski design, such as "side-camber" (the arc created from the
changing widths along the snowboard ski's length); "camber" (an
upward arc along the length of the ski, to provide equal
distribution of weight); and increased thickness at the waist (to
provide strength and flexibility) are also shared by the snowboard
ski. In short, snowboard skis look, feel and perform like a type
of traditional alpine skis.
The entries under protest included three models of snowboard
ski. The samples submitted, however, are of only two models. The
first is as described above, and constructed of laid-up fiberglass
composite materials. It has a bright yellow and white design
bearing the name "EDGE" across the front. It is our understanding,
from the descriptions available, that the third model, the "Legend"
is substantially similar.
The second type of snowboard ski is constructed of molded
polyvinyl chloride ("PVC") plastics, and does not have a steel
edge. It does retain some of the other characteristics, however
it is also considerably lighter in weight and substance than the
first sample. This model is called "The Mogul Monster", and the
tail is marked "Not for ski area use." Literature available to us
indicates that the "Mogul Monster" is for use by children and
youth, while the "Edge" and "Legend" models are intended for older
participants.
The snowboard skis at issue here were liquidated under the
Harmonized Tariff Schedule of the United States Annotated (HTSUSA)
provision for other athletic equipment:
9506 Articles and equipment for gymnastics, athletics,
other sports (including table tennis) or outdoor
games, not specified or included elsewhere in this
chapter; swimming pools and wading pools; parts and
accessories thereof:
Other:
9506.99 Other:
9506.99.60 Other:
9506.99.6080 Other:.......................
The protestant claims that these goods are more properly
classified under the HTSUSA provisions for other snow skis:
9506 Articles and equipment for gymnastics, athletics,
other sports (including table tennis) or outdoor
games, not specified or included elsewhere in this
chapter; swimming pools and wading pools; parts and
accessories thereof:
Snow-skis and other snow-ski equipment; parts
and accessories thereof:
9506.11 Skis and parts and accessories thereof,
except ski poles:
9506.11.4000 Other skis........................
Alternatively, the protestant claims classification under
HTSUSA subheading 9506.19.8080, as other ski equipment. Because
the first two contested provisions (9506.99.6080 and 9506.11.4000,
HTSUSA) are dispositive for purposes of this protest, they are the
only two provisions addressed here.
The initial liquidation for which this protest was filed
occurred on March XX, XXXX. The timely filing of this protest
occurred on June X, XXXX. Your office recommended denial of the
protest because the same or substantially similar goods were the
subject of a previously issued New York Ruling Letter (NYRL),
number 830174, and did not meet the requirements of Customs
Regulation 174.24 (Criteria for Further Review). Subsequent to
your recommendation however, this office issued Headquarters Ruling
Letter (HRL) 085523 which provided for inconsistent treatment of
the same or similar goods. HRL 085523 therefore brought the
current protest within the requirements of C.R. @174.24, and it has
been forwarded to us for further review. We note that the New York
office has indicated that HRL 085523 appears to resolve this issue,
and on the basis of HRL 085523, the protest should be allowed. We
agree with regard to the sample referred to as the "Edge". As to
the "Mogul Monster" sample, the protest should be denied. With
regard to the third model involved, the "Legend", we will allow the
protest if the goods are substantially similar to the "Edge" model,
and/or meet the requirements of subheading 9506.11.4000, HTSUSA,
as set out below and in HRL 085523.
ISSUE:
Are snowboard skis classifiable as claimed by the protestant?
LAW AND ANALYSIS:
A legal analysis of this issue was set out in HRL 085523,
dated December 28, 1989. In brief, it supports the protestant's
assertions regarding classification of certain of the protested
items as "other skis" under the HTSUSA. We affirm the rationale
of HRL 085523 here and determine that it is applicable to the goods
liquidated under this protest.
The central issue here, as in HRL 085523, is the scope and
meaning of the term "ski(s)". As we stated in HRL 085523, the
definition of that term under the HTSUSA is uncertain. We find no
clear definition in the Legal Notes, Explanatory Notes, legislative
history or Customs Cooperation Council documentation. Turning to
the common and commercial meaning of the term we are faced with the
dilemma that snowboard skis are such a recent development in winter
sporting activity that they cannot have been contemplated when any
of the usual authorities (legislative history, dictionaries,
lexicons, etc.) were created. That it may fairly fall within the
eo nomine provisions of subheading 9506.11, HTSUSA is clear under
several well settled tenets of Customs law: Eo nomine
classification is not necessarily limited by the juxtaposition of
descriptive words; an eo nomine designation will include all
articles subsequently created which come within its scope. Sears
Roebuck & Co., v. United States, 46 CCPA 79, C.A.D. 701 (1959);
Eo nomine designation of a class will include all members of the
class, as if provided by name, Robert Bosch Corporation, et al v.
United States, 63 Cust.Ct. 187, C.D. 3895 (1969); and an eo nomine
designation, without limitation will include all forms of the
article (emphasis added). T.M. Duche & Sons, Inc., et al v. United
States, 44 CCPA 60, C.A.D. 638 (1957).
How then do we determine the classification of a new and novel
article of commerce heretofore unknown under the current
nomenclature? In particular, how do we determine whether that
product is included under an existing nomenclature provision? Case
law provides that:
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, Ltd. v. United States, 9 CIT 227, 229
(1985), cited in HRL 085523.
After considering many different factors, we are of the
opinion that the snowboard skis in this case possess an "essential
resemblance" to traditional skis included under subheading
9506.11.4000, HTSUSA. We have considered the shape, processes and
construction methods, and vernacular of snowboard skis; the variety
of skis currently classified under the proposed subheading; the
acceptance of snowboard skiing in the ski industry; the mechanics
of use; and relative newness of snowboard skiing as a winter
sporting activity as factors in our decision. During a meeting
with attorneys from this office, and in an additional submission,
counsel for the importer has supplied extensive background
information which lends credence to their assertions. The thrust
of our decision is that although differences exist between
snowboard skis and traditional alpine skis, they do not act as a
bar to classification as other skis of subheading 9506.11.4000,
HTSUSA.
To hold that the term "ski" in marketing and sporting circles
is restricted to the traditional concept of pairs of alpine skis
is to ignore an important function of the tariff schedules, namely
to provide eo nomine classification for most of the articles in
international trade. We note also the principle that tariff
provisions should be open to the invention of new and different
products. Congress could not have intended to foreclose future
innovations in [goods] from classification under the [eo nomine]
provisions. Simmon Omega, Inc. v. United States, 83 Cust.Ct. 14,
C.D. 4815 (1979). To hold otherwise would result in the
classification of any and every new product in the basket
provisions of the nomenclature, a result which was specifically
targeted for elimination under the HTSUSA.
It has been suggested that comparing the mechanics of use of
snowboard skis and traditional alpine skis reveals differences
which preclude classification in the suggested heading. However,
such arguments are based on aspects of the articles' use, and in
eo nomine classification the mechanics of use are not dispositive
of the issue. We are concerned here with the physical
characteristics of the objects submitted as samples. We must
determine that, as an article of commerce, they fit within the
scope of the term "other skis." We are not comparing the act of
alpine skiing with the act of snowboard skiing, nor are we making
the broad generalization that alpine (or any other type of) skiing
is the equivalent of snowboard skiing for purposes of every heading
in the tariff schedule.
We cannot agree with the contentions put forth regarding use
of snowboard skis and/or alpine skis. There can be no broad
generalization that all participants in the sport of skiing, no
matter what type or age or skill level, pursue the same objectives.
We are aware of many facets of skiing, from snowboard skiing to
slalom racing to free-style alpine to cross-country racing, none
of which can be characterized by a single, neatly drawn description
of the sport. We are not proposing that any article describing
itself as "ski" of some variety be included here, but it is clear
to us that a sufficiently broad description is warranted to include
the goods at issue here.
Finally, it has been suggested that the marketing of snowboard
skis differs from that of alpine skis. While we agree that
different groups of individuals may be more inclined to use
snowboard skis while others would favor alpine skis, we do not
agree that the marketing and sale of either item is so exclusive
as to prohibit exposure to or consideration of the other. In fact,
it is our observation that sporting goods and specialty retailers
serve both markets simultaneously, and that common accessories such
as "ski" poles may be used across snowboard/alpine ski boundaries.
That a retailer would immediately be inclined to sell an individual
either one product or the other in this case appears to be more
consumer dependant than it is product dependant. And, while the
marketplace can be helpful in determining the meaning of a tariff
term, it is not dispositive of tariff classification.
HOLDING:
The above analysis is applicable to that sample referred to
as the "Edge." On the whole, it contains the features and
similarities which bring it within the meaning of the term "other
skis" of subheading 9506.11.4000, HTSUSA.
The other sample, the "Mogul Monster", is not so similarly
equipped. Its limited use, distinctly limited features, and
construction do not bring it within the term "other skis." In
addition, we note that its sale is not limited to specialty shops,
but may be found in toy stores or other retail outlets. This
indicates to us that the characteristics of more complex models
similar to alpine skis are not present here. This item should be
classified under subheading 9506.99.6080, HTSUSA.
The protest should be allowed as to the merchandise entered
in entry numbers XXX-XXXXXXX-X, XXX-XXXXXXX-X, XXX-XXXXXXX-X, and
XXX-XXXXXXX-X, which meets the criteria set out above for inclusion
in heading 9506.11.4000, HTSUSA, as "other skis." As to the other
goods referred to as snowboards which do not meet the criteria for
"other skis", the protest should be denied.
A copy of this decision should be attached to the Form 19
Notice of Action to be sent to the protestant.
Sincerely,
John A. Durant
Director