CLA-2 OT:RR:CTF:TCM H007654 IDL
Mr. Angelo Spadaccini
Velociter AXA, LLC
13308 Bondy Way
Damestown, Maryland 20878
Re: Ski and Ski Pole Carrier; Revocation of NY N006891
Dear Mr. Spadaccini:
This letter is in response to your request, dated February 22, 2007, for reconsideration of New York Ruling Letter (NY) N006891, dated February 15, 2007, issued to your company, Velociter AXA, LLC, by the National Commodity Specialist Division, U.S. Customs and Border Protection (CBP). The issue in NY N006891 was the correct classification of a “Sling-Ski® Universal Ski & Ski-Pole Carrying System” (“Sling-Ski®”) under the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed NY N006891 and have found that it is incorrect.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. § 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification was published in the Customs Bulletin, Vol. 43, No. 22, on May 29, 2009. No comments were received in response to the notice.
FACTS:
In NY N006891, the “Sling-Ski®” was described as follows:
The product is a ski and ski pole carrier that allows… user[s] to carry their ski equipment hands-free.
We have obtained a sample from you, and additional information on the “Sling-Ski®” through your company’s Web site. The Web site provides the following:
One Sling-Ski® set consists of two tough and flexible Hytrel holding members…that contain a soft inner lining to protect skis from abrasion, a proprietary alloy ring for attachment of the clasps of shoulder strap…and a micro-adjustable ratcheting closure system that allows [for] maximum tightening with minimal effort. The length of the shoulder strap…is adjustable to suit large adults to small children equally and has a weight-distributing flexible pad and 2-light-weight D-rings to facilitate clipping of accessories (e.g., gloves, helmet, sunglasses, goggles, key chain, etc.).
CBP classified the subject merchandise under heading 9506, HTSUS, which provides for: “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.”
ISSUE:
Whether the “Sling-Ski®”, as described above, is properly classified in heading 8479, HTSUS, as machines and mechanical appliances not specified or included elsewhere or under heading 9506, HTSUS, as parts and accessories of sports equipment?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The 2009 HTSUS provisions under consideration are as follows:
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:
* * *
Other machines and mechanical appliances:
8479.89 Other:
* * *
Other. . . .
* * *
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:
Snow-skis and other snow-ski equipment; parts and accessories thereof:
Skis and parts and accessories thereof, except ski poles:
* * *
9506.11.60 Parts and accessories. . . .
* * *
Other:
* * *
Other
* * *
Other. . . .
Note 3 to chapter 95, states, in pertinent part, that "…parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles.”
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 84.79 provides, in pertinent part, as follows:
This heading is restricted to machinery having individual functions, which:
Is not excluded from this Chapter by the operation of any Section or Chapter Note[;] and
Is not covered more specifically by a heading in any other Chapter of the Nomenclature[;] and
Cannot be classified in any other particular heading of this Chapter since:
(i) No other heading covers it by reference to its method of functioning, description or type[;] and
(ii) No other heading covers it by reference to its use or to the industry in which it is employed[;] or
(iii) It could fall equally well into two (or more) other such headings (general purpose machines).
* * *
For this purpose the following are to be regarded as having “individual functions”:
Mechanical devices, with or without motors or other driving force, whose function can be performed distinctly from and independently of any other machine or appliance.
* * *
Mechanical devices which cannot perform their function unless they are mounted on another machine or appliance, or are incorporated in a more complex entity, provided that this function:
(i) is distinct from that which is performed by the machine or appliance whereon they are to be mounted, or by the entity wherein they are to be incorporated, and
(ii) does not play an integral and inseparable part in the operation of such machine, appliance or entity.
* * *
The many and varied machines covered by this heading include inter alia:… [emphasis added].
EN 95.06 provides, in pertinent part, as follows:
This heading covers:
* * *
(B) Requisites for other sports and outdoor games (other than toys presented in sets, or separately, of heading 95.03), e.g. :
Snow skis and other snow ski equipment, (e.g., ski fastenings (ski bindings), ski brakes, ski poles).
* * *
In NY N006891, CBP held that the “Sling-Ski®” is not an accessory to a snow ski, because the “carrier is not designed in its operation to contribute to the operational effectiveness of snow skis[, and]…does not relate directly to ski performance because the carrier has no effect on how well the skis will operate.”
Consequently, CBP classified the subject merchandise under subheading 9506.19.80, HTSUS, as: “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: Snow-skis and other snow-ski equipment; parts and accessories thereof: Other: Other.”
In your request for reconsideration, you challenge CBP’s interpretation of “accessory” in that decision, contending that the “Sling-Ski®” meets the criteria set forth in HQ 958924, because “use of the ‘Sling-Ski®’ can allow elderly people with arthritis/joint problems in their wrists and hands to carry skis and ski poles hands-free and allows small children to carry their own equipment when skiing-thereby facilitating the use or handling of the principal article [skis and poles]…. By allowing access to the elderly and the young…the ‘Sling-Ski®’ also ‘widens the range of the uses of the principal article…” [emphasis added]. Therefore, you contend that the subject merchandise should have been classified under subheading 9506.11.60, HTSUS, as: “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: Snow-skis and other snow-ski equipment; parts and accessories thereof: Skis and parts and accessories thereof, except ski poles: Parts and accessories.”
In accordance with Note 3 to Chapter 95, HTSUS, we must first determine whether classification in heading 9506, HTSUS, as an accessory, is appropriate before consideration is given to classification in heading 8479, HTSUS.
The term "accessory" is not defined in the HTSUS or in the ENs. However, this office has stated that the term "accessory" is generally understood to mean an article which is not necessary to enable the goods with which they are intended to 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 particular article, widen the range of its uses, or improve its operation). See Headquarters Ruling Letter (HQ) 958710, dated April 8, 1996; HQ 950166, dated November 8, 1991. We also employ the common and commercial meanings of the term "accessory", as the courts did in Rollerblade v. United States, wherein the Court of International Trade derived from various dictionaries that an accessory must relate directly to the thing accessorized. See Rollerblade, Inc. v. United States, 116 F.Supp. 2d 1247 (CIT 2000), aff’d, 282 F.3d 1349 (Fed. Cir. 2002) (holding that inline roller skating protective gear is not an accessory because the protective gear does not directly act on or contact the roller skates in any way); see, also, HQ 966216, dated May 27, 2003.
Thus, for the merchandise to be considered an "accessory" of heading 9506, HTSUS, it must contribute directly to the effectiveness of the primary article (a snow-ski or other snow-ski equipment), and be suitable for use solely or principally with the primary article.
The “Sling-Ski®” does not directly act on or contact the snow-skis or other snow-ski equipment in any way or contribute to the effectiveness of the principal article. It is used to allow users to carry their ski equipment hands-free. As such, it is excluded from heading 9506, HTSUS.
Rather, our examination of the sample reveals that the “Sling-Ski® is a type of machine that meets the provisions of heading 8479, HTSUS. See, HQ 089411, dated June 20, 1991, wherein we classified in heading 8479, HTSUS, a “Combo Tie Down Pack,” described as follows:
The Combo Tie Down Pack consists of four tie downs used to secure various articles. Two tie down employ nylon straps with metal locking buckles for fastening the strap and locking in into place. The buckles are spring operated. At either end of the strap is a vinyl covered “S” hook used for attaching the strap.
The pack also contains two ratcheting nylon straps that also have “S” hooks on either end of the strap. Each of the ratcheting straps are themselves two piece units consisting of a shorter strap with an “S” hook and a ratcheting action lock mechanism for locking the strap in place. The second and longer piece consists of a nylon strap and an “S” hook on one end. In use, the longer strap is inserted through the ratchet action mechanism and pulled through to the desired position. The ratchet mechanism is then used to securely tighten the strap at its optimum, non-slipping position.
See, also, HQ 950334, dated January 24, 1992, wherein we classified in heading 8479, HTSUS, “trailer winches,” described as follows:
Heading 8479 encompasses machinery having individual functions which is not more specifically provided for elsewhere in the HTSUS. The devices here have sufficient mechanical capability to qualify as machinery. Moreover, although they must be mounted on a flatbed trailer, their function is separate and distinct from that of the trailer. They therefore have an individual function as required of classification in heading 8479[, HTSUS]. In a ruling dated June 10, 1991 ([HQ] 089411), ratchet tie down instruments consisting of nylon straps and gear and pawl mechanisms, and used to secure various articles, were held to be classifiable in heading 8479[, HTSUS].
Like the merchandise at issue in the rulings cited above, the instant “Sling-Ski®” contains an alloy ring for attachment, textile straps and a gear and pawl mechanism that function together to securely tighten the ski-equipment to facilitate transport by the user.
Accordingly, the “Sling-Ski®” is classified under heading 8479, HTSUS.
HOLDING:
By application of GRI 1, the “Sling-Ski® Universal Ski & Ski-Pole Carrying System” is classified in heading 8479, HTSUS, and specifically provided for under subheading 8479.89.98, HTSUS, as: “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter…: Other machines and mechanical appliances: Other: Other.” The 2009 general, column one rate of duty is 2.5% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N006891, dated February 15, 2007, is revoked. In accordance with 19
U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division