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HQ 087851


January 4, 1991

CLA-2 CO:R:C:G 087851 WAW

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.99.6080

Ms. Mary Ann LaValley
A.N. Deringer, Inc.
30 West Service Road
Champlain, NY 12919-9703

RE: PocketSki; Snowboard Ski;

Dear Ms. LaValley:

This letter is in response to your inquiry, dated August 31, 1990, on behalf of your client, Sporttech S.C. Inc., concerning the tariff classification of "PocketSKI's" under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample of the merchandise, a video cassette and descriptive literature were forwarded to us for our review.

FACTS:

The sample merchandise, referred to as the "PocketSKI," is described as length adjustable short ski-like articles of high- density polyethylene material which is designed to be worn mounted onto a shoe or boot by means of textile straps with velcro-like closures affixed to the lower leg and over the instep. The ski has a sole-receiving portion and a heel- receiving portion. Overlapping heel and sole platforms are interconnected by tongue-and-groove joints which allow the pocketSKI to be manually adjusted to a desired range of lengths. Descriptive literature of the product indicates that it is intended "to provide an inexpensive way for children to entertain themselves with endless hours of outdoor winter fun and exercise, pocketSKIing in safe supervised areas such as the backyard, around the house and in local parks."

The manufacturer of the article maintains that the pocketSKI resembles a traditional ski since it is designed to be mounted on a boot and is used for gliding and travelling over snow or icy surfaces. In addition, the manufacturer asserts that like a traditional ski, the pocketSKI is sold and used in pairs and is mounted on each individual boot. Moreover, the manufacturer claims that the pocketSKI can be used by children as well as adults. For these reasons, the manufacturer states that the pocketSKI should be classified as "other skis" in subheading 9506.11.4000, HTSUSA.

ISSUE:

Whether the "PocketSKI" is properly classified as "other skis" in subheading 9506.11.4000, HTSUSA, or rather as "other articles and equipment for. . . athletics, other sports. . . or outdoor games, not specified or included elsewhere in this chapter" in subheading 9506.99.6080, HTSUSA.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

GRI 1 directs us to Heading 9506, HTSUSA, under which the competing provisions are found. We have examined the applicability of subheading 9506.11.4000, HTSUSA, to the pocketSKIs at issue in this case. That subheading provides the following:

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. . . . . . . . . . . . .

Neither the Legal Notes nor the Explanatory Notes prescribe any criteria for the inclusion of goods in subheading 9506.11, HTSUSA. 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, HTSUSA, the pocketSKIs are subject to classification under the provision for "other sports equipment" in subheading 9506.99.6080, HTSUSA. Thus, the issue we are asked to address in this case is whether the pocketSKI fits the definition of a "ski" for tariff purposes.

In a decision interpreting the term "ski," the Customs Service has stated that for an article to be classified under the provision for "other skis" it must possess several features commonly associated with skis. In Headquarters Ruling Letter 086659, dated June 26, 1990, Customs held that certain children's snowboards were sufficiently dissimilar to the traditional alpine or downhill ski and therefore were excluded from subheading 9506.11.4000, HTSUSA, since they lacked several features associated with skis. In that ruling, Customs stated that skis of subheading 9506.11.4000, HTSUSA, are devices used for traveling downhill by gliding over snow. Customs determined that for an article to fall within subheading 9506.11, HTSUSA, it must possess not only the shape of traditional snow skis, but also manufacturing similarities, performance characteristics, safety features, ruggedness, suitability to serious amateur or professional use, and appropriate marketing/sales aspects. In sum, when classifying an article in subheading 9506.11, HTSUSA, Customs will consider all of the factors which make up the product as a whole.

In the instant case, it is the opinion of this office that the subject merchandise does not exhibit sufficient similarity to traditional skis as we have interpreted the meaning of that term in subheading 9506.11.4000, HTSUSA. The very concept and construction of the pocketSKI does not offer a sufficient performance level, the ruggedness, or the suitability for serious amateur use in the sport of skiing to merit its inclusion in the ski provision. The importer's literature clearly markets these goods for children, indicating that the goods are intended for casual, recreational off-ski area use such as back yard hills, parks and golf courses, rather than in commercial ski areas. Accordingly, we find no support for the determination that the pocketSKI falls within the common meaning of the term "skis." The pocketSKIs are not sufficiently accepted in the trade as skis.

In addition, we have determined that the "pocketSKI" does not qualify as a toy or plaything, since the activity engaged in falls within the meaning of the tariff term "sport equipment." Specific physical activities do not necessarily have to possess the cultural sanction of a recognized sport to qualify for inclusion in Heading 9506, HTSUSA. The Customs Court has interpreted the term "sport" to include specific activities which possess "to a meaningful degree the same attributes of healthy, challenging and skillful recreation which characterize such acknowledged sports as scuba diving, skiing, horseback riding and mountain climbing." See Newman Importing Co., Inc. v. United States, 76 Cust. Ct. 143, C.D. 4648 (1976) (holding that backpacking is a sport and that the tents at issue were designed for use in the sport of backpacking so as to come within the meaning of the tariff term "sport equipment"). Thus, while the pocketSKI may not represent a recognized sport, it is not classified as a toy, since the activity engaged in involves the practice and pursuit of athletic training, exercise and achievement and possesses attributes of "healthy, challenging and skillful recreation."

HOLDING:

The sample "PocketSKI" is classified as other sporting goods equipment in subheading 9506.99.6080, HTSUSA. Articles classified under this subheading are subject to a duty rate of 4.64 percent ad valorem.

Sincerely,

John Durant, Director

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