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HQ 086626


January 15, 1991

CLA-2 CO:R:C:G 086626 KWM

CATEGORY: CLASSIFICATION

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

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