CLA-2 RR:CR:GC 960821ptl
Port Director
U.S. Customs Service
1624 E. 7th Avenue
Suite 101
Tampa, FL 33605-3706
RE: Protest 1801-97-100050; Policlassic Artificial Turf; HQs
075737/811516, 081903, 952267; Nichimen Co., Inc. v. United
States, 72 Cust. Ct. 130, C.D. 4514 (1974).
Dear Port Director:
This is our decision on protest 1801-97-100050, against your
classification under the Harmonized Tariff Schedule of the United
States (HTSUS) of certain policlassic artificial turf.
FACTS:
The merchandise under protest is a form of synthetic grass,
called policlassic turf. It was imported in rolls, measuring 2m
x 38m. The manufacturer's technical data sheet describes the
finished product as being the result of a tufting production
process.
The entry covering the merchandise was made on August 8, 1996,
and liquidated on March 28, 1997, under the provision for carpets
and other textile floor coverings, tufted, in subheading
5703.30.0080, HTSUS, with duty at the general rate of 7.3%. A
timely protest under 19 U.S.C. 1514 was received on April 2,
1997. The protestant requested reliquidation of the entry under
the provision for sports equipment, other, parts & accessories in
subheading 9506.99.6080, HTSUS, with duty at the general rate of
4.4%.
ISSUE:
What is the classification of policlassic turf?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). The systematic detail of
the HTSUS 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 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 may then be applied
in order.
The headings under consideration are as follows:
5703 Carpets and other textile floor coverings,
tufted, whether or not made up:
* * *
5703.30.00 Of other man-made textile materials
* * *
Other:
* * *
5703.30.0080 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:
* * *
Other:
* * *
9506.99 Other:
* * *
9506.99.60 Other:
* * *
9506.99.6080 Other.
The protestant is basing its contention that the merchandise
should be classified as sports equipment in heading 9506, HTSUS,
on HQ 075737/811516, issued on April 10, 1985. That ruling was
issued to the protestant under the Tariff Schedules of the United
States (TSUS), the predecessor to the HTSUS, and classified
artificial playing surface as sporting equipment, with the actual
classification being dependent on which sport the surface was
intended. The protest states that the instant merchandise is
identical to that covered by the earlier ruling.
The HTSUS, which went into effect January 1, 1989, is a new
tariff system with rules of interpretation and application
somewhat different from the TSUS. As noted in House Conference
Report No. 100-576, dated April 20, 1998, on the Omnibus Trade
and Competitiveness Act of 1988 (P.L. 100-418), decisions by the
Customs Service and the courts interpreting nomenclature under
the TSUS are not to be deemed dispositive in interpreting the
HTSUS. Nevertheless, on a case-by-case basis prior decisions
should be considered instructive in interpreting the HTSUS,
particularly where the nomenclature previously interpreted in
those decisions remains unchanged and no dissimilar
interpretation is required by the text of the HTSUS.
As was noted above, HQ 075737/811516, was issued under the
TSUS. It does not reflect the current Customs position on the
classification of the merchandise under the HTSUS.
Heading 9506, HTSUS, provides for articles and equipment for
sports and outdoor games. However, the scope of the heading is
limited to articles which are required by and for the sport and
which are designed to be used by a player in the practice of,
training for, and activity of the sport or game. The "articles"
and "equipment" specifically provided for in this heading
include, for example, skis, golf clubs, sports balls, rackets,
skates, exercise equipment and sports protective gear. All the
articles identified are intended to be used by a participant
while engaging in or participating in the sport for which they
have been designed. They are either necessary to enable
participation in the sport, or they protect a participant who is
engaging in the sport.
The artificial turf which constitutes the surface on which a
sport is played is neither essential or necessary for the conduct
of the sport. Playing surfaces do not assist the player in the
pursuit of the sport. They function as a convenient and
efficient surface upon which the game or sport is played. They
are part of the structure or environment located at the site of
the sport. Although the surfaces might facilitate the playing of
the sport, they are not essential to the game or activity.
We note that the court in Nichimen Co., Inc. v. United
States, 72 Cust. Ct. 130, C.D. 4514 (1974) agreed with the
Customs position that retaining nets for golf driving ranges were
not sports equipment even though they were specifically designed
for use at the driving ranges because they were not "designed for
the use of the player during the course of play" and were not
intended to aid the players in the conduct of the sport of golf.
In order to be considered "equipment" of heading 9506, HTSUS, the
article or apparatus must be used by a player during the course
of playing a sport or game, or it must be essential to the
conduct of the game or sport, like a tennis or badminton divider
net, or the goal net used in hockey or soccer. A floor system
consisting of artificial turf is neither used by a player, nor it
it essential to the conduct of the sport.
The sample of the merchandise submitted to Customs has been
examined and been determined to be a tufted textile floor
covering. The merchandise is classified in subheading
5703.30.0080, HTSUS, which provides for carpets and other textile
floor coverings, tufted, whether or not made up: of other man-made textile materials, other, other. This classification is
consistent with HQ 081903, issued November 25, 1988, and HQ
952267, issued September 23, 1992, which classified similar
merchandise in the same heading.
HOLDING:
For the reasons stated above, the protest should be DENIED.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, Revised Protest Directive, dated August 4, 1993, a
copy of this decision attached to Customs Form 19, Notice of
Action, should be provided by your office to the protestant no
later than 60 days from the date of this decision and any
reliquidations of entries in accordance with this decision must
be accomplished prior thereto. Sixty days from the date of this
decision the Office of Regulations and Rulings will take steps to
make this decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division