CLA-2-95:RR:CR:GC 962171 AML
TARIFF NOS.: 3926.90.75; 8903.10.00
Ned H. Marshak, Esquire
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, New York 10004
.
RE: Inflatable “boats;” 20 gauge rule; Reconsideration of HQ 083121
Dear Mr. Marshak:
This in response to your letter, dated June 10, 1998, which requests a binding ruling and reconsideration of HQ 083121, dated April 23, 1990, concerning the classification of inflatable “boats” under the Harmonized Tariff Schedule of the United States (HTSUS), on behalf of your client, Intex Recreation Corporation. Photocopies were provided for our consideration. We regret the delay in responding.
FACTS:
Based upon the information and photocopies provided, the Intex Recreation Corporation makes several lines and models of inflatable “boats”. The models in each series are constructed of chambered, inflatable, polyvinyl chloride (PVC) which varies in gauge of thickness from 11 to 31 gauge. The models in all of the product lines increase in size and capacity in correspondence with the model number, such that the articles in the 100 series in all lines are the smallest, usually with a capacity for one person and 120 pounds of gear, and those in the 400 or 500 series are the largest, usually with capacity for more than one person and up to 510 pounds of gear.
ISSUE:
Whether the inflatable “boats” should be classified under subheading 3926.90.75, HTSUS, as other articles of plastics . . . pneumatic mattresses and other inflatable articles,
not elsewhere specified or included; 8903.10.00, HTSUS, as yachts and other vessels for pleasure or sports . . . inflatable; 8907.10.00, HTSUS, as other floating structures, inflatable rafts; or 9506.29.00, HTSUS, as other water sport equipment?
LAW and ANALYSIS:
Classification of imported merchandise is accomplished pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Classification under the HTSUS is guided by the General Rules of Interpretation of the Harmonized System (GRI’s). GRI 1, HTSUS, states in part that “for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes[.]” The applicable headings under consideration are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.75 Pneumatic mattresses and other inflatable articles, not elsewhere specified or included.
* * * * * * * * * * *
8903 Yachts and other vessels for pleasure or sports; row boats and canoes:
8903.10.00 Inflatable.
* * * * * * * * * * *
8907 Other floating structures (for example, rafts, tanks, cofferdams, landing stages, buoys and beacons):
8907.10.00 Inflatable rafts.
* * * * * * * * * * *
9506 Articles and equipment for general physical exercise, 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:
9506.21 Water skis, surf boards, sailboards and other water-sport equipment; parts and accessories thereof:
9506.29.00 Other.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the ENs should always be consulted. See T.D. 89 80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The ENs state that Chapter 89, HTSUS, “covers ships, boats and vessels of all kinds (whether or not self propelled) . . .” Chapter 89, General EN, p. 1569. EN 89.03,
p. 1571, states that “[t]his heading includes yachts, marine jets and other sailboats and motorboats, dinghies, kayaks, sculls, skiffs, pedalos (a type of pedal-operated float), sports fishing vessels, inflatable craft and boats which can be folded or disassembled. This heading also covers lifeboats propelled by oars[.]”
To be classifiable in heading 8903, HTSUS, an article must be a “vessel.” The term “vessel” is defined by statute and the courts through case law:
19 U.S.C. 1401(a) provides:
[t]he word “vessel” includes every description of water craft or other contrivance used, or capable of being used, as a means of transportation in water, but does not include aircraft.
In Thayer v. United States, 2 CCA 526, 529, T.D. 32252 (1912), the court stated:
[w]e think it is obvious that Congress could not have meant by section 3 that every artificial thing that floats on water and of sufficient buoyancy to be used as a means of transporting anything, however small, is a vessel in the eyes of the law, but must have meant that to be a vessel it must be capable of some substantial use as a means of transportation on water.
In Hitner Sons Co. v. United States, 13 Ct. Cust. App. 216, 221, T.D. 41175 (1922), the court stated:
[t]he test is the actual status of the structure as being fairly engaged in or suitable for, commerce or navigation and as a means of transportation on water.
In Tregoning Boat Co. v. United States, 15 Cust. Ct. 196, 199, C.D. 971 (1945), the court stated:
[u]nder the definition of “vessel” contained in 1 U.S.C. section 3, as construed by the courts, present and continuous use as a means of transportation on water is not required; capability of practical and substantial use is sufficient.
Thus it is clear that a “vessel” must be capable of practical and substantial use on water. To implement this definition for purposes of tariff classification under the Tariff Schedules of the United States (TSUS) (the predecessor of the HTSUS), in 1977 Customs adopted the so-called “20-gauge rule” for inflatable “boats” made of PVC. The “rule” provides that those inflatable “boats” constructed of PVC greater than 20 gauge thickness are considered to be capable of practical and substantial use on water, and are thus treated as vessels. Those constructed of PVC of 20 gauge thickness or less are considered to be of insubstantial construction and incapable of practical and substantial use on water. They are treated as articles other than vessels.
Customs continued this distinction (i.e., distinguishing inflatable “boats” on the basis of the “20 gauge rule”) under the HTSUS. In HQ 083121, dated April 23, 1990, Customs classified inflatable “boats” on the basis of the significance of their construction. We stated:
[i]t is clear from the language of the tariff and the Explanatory Notes that all vessels for pleasure or sport, be they boats, crafts or ships, are to be classified within heading 8903. However, not everything that floats is a vessel. Under the former Tariff Schedules of the United States (TSUS) it was determined that for an inflatable to be a vessel, the inflatable must be of “significant construction.” Significant construction was defined as anything above 20 gauge PVC.
It is the opinion of this office that the 20 gauge rule under the TSUS should remain the standard by which inflatables are judged under the HTSUS. This conclusion is reached from the relevant definitions of “vessel” found within Customs case law.
Accordingly, we conclude that the models of inflatable “boats” constructed of PVC greater than 20 gauge are classified in subheading 8903.10.00, HTSUS, which provides for yachts and other vessels for pleasure or sports, inflatable. The models constructed of PVC of 20 gauge or less were classified by HQ 083121 in subheading 3926.90.75, HTSUS, which provides for other articles of plastics, other, pneumatic mattresses and other inflatable articles, not elsewhere specified or included. Because of the exclusionary clause in this latter subheading, before classifying the articles in subheading 3926.90.75, HTSUS, we must first eliminate all other provisions under which the articles could be specified or included.
You present an alternative argument that the articles should be classified in heading 9506, HTSUS, as other sports equipment. Consideration of the relevant headings and ENs reveals that classification of the articles cannot be in heading 9506.
Note 1(p) to chapter 95 states in pertinent part:
This chapter does not cover:
* * *
(p) Sports craft such as canoes and skiffs (chapter 89), or their means of propulsion (chapter 44 for such articles made of wood)[.]
Simply stated, the articles are not contemplated by heading 9506 as they are not sports craft such as canoes and skiffs. Classification in subheading 9506.29.00, HTSUS, is precluded by Note 1(p) to Chapter 95, HTSUS. Note 1(p) excludes from classification in Chapter 95 “[s]ports craft such as canoes and skiffs” (emphasis added), so there is no requirement that the “craft” be “vessels” as there is for classification in heading 8903, HTSUS (see discussion above). Whether of PVC greater or lesser than 20 gauge, the articles are not “[s]ports craft” as contemplated by the heading and Chapter Note.
Heading 8907, HTSUS, covers certain floating structures not having the character of vessels. EN 89.07 states, in pertinent part, at p. 1574 that:
This heading covers certain floating structures not having the character of vessels (emphasis in original). They are generally stationary when in use[.]
The exemplars listed in EN 89.07 make it clear that the characteristic of vessels that the structures covered in heading 8907 lack is that of transporting persons or things from one place to another (see Webster’s New World Dictionary (3rd Coll. Ed., 1988), defining “transport” as “to carry from one place to another, esp. over long distances”). This is consistent with the statement in EN 89.07 that floating structures of the heading “are generally stationary” and the listed exemplars which include cofferdams, buoys and beacons, which are incapable of human transport. The inclusion of life rafts (EN 89.07(10) “[r]afts of all kinds including floating craft of circular shape . . . for carrying shipwrecked persons”) is consistent with this interpretation of heading 8907 and the heading therefor. Life rafts are generally stationary and are used to enable passengers to remain afloat at sea while awaiting rescue, rather than to transport passengers from one place to another. The articles under consideration are not “generally stationary” and are not classifiable in heading 8907.
Accordingly, we conclude that the models of inflatable “boats” constructed of PVC of 20 gauge or less are classifiable in subheading 3926.90.75, HTSUS, which provides for other articles of plastics . . . pneumatic mattresses and other inflatable articles, not elsewhere specified or included.
HOLDING:
The articles are classified in the following manner:
The inflatable “boats” constructed of PVC of 20 gauge PVC or less shall be classified pursuant to subheading 3926.90.75, HTSUS, which provides for pneumatic mattresses and other inflatable articles not elsewhere specified or included.
The inflatable “boats” constructed of PVC of greater than 20 gauge PVC shall be classified pursuant to subheading 8903.10.00, HTSUS, which provides for yachts and other vessels for pleasure or sports; row boats and canoes; inflatable.
EFFECT ON OTHER RULINGS:
HQ 083121 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division