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HQ 085523

December 23, 1989

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.


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.


How are snowboard skis classified under the Harmonized Tariff Schedule of the United States?


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.


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
Commercial Rulings Division

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