CLA-2 RR:CR:GC 965997 DSS
Acting Port Director of Customs
P.O. Box 55580
Portland, OR 97238
RE: Further Review of Protest 2904-02-100261; Racing Shells
Dear Port Director:
This is in response to the request for Further Review of Protest No. 2904-02-100261, dated September 17, 2002, filed by James Sims, regarding the tariff classification of racing shells under the Harmonized Tariff Schedule of the United States (HTSUS). The entry was liquidated on September 13, 2002, and this protest was timely filed on September 17, 2002.
The product at issue is racing shells. The protestant has submitted several drawings and photographs of shells, kayaks, and canoes. Shells are made in various sizes to accommodate one or several users. The protestant reports the subject racing shells are primarily made of plastics, and epoxy resins, and they incorporate the “honeycomb/sandwich” design found in racing boat construction.
The racing shells were entered under subheading 8903.99.05, HTSUS, as “canoes which are not of a type designed to be principally used with motors or sails.” However, the entry was liquidated under the subheading 8903.99.15, as “row boats and canoes, other.” You relied on New York Ruling (NY) C85640, dated March 19, 1998, which classified rowing shells under subheading 8903.99.15, HTSUS.
The protestant claims that the only difference between canoes and kayaks, which are classified under subheading 8903.99.05, HTSUS, and row boats, which are classified under 8903.99.15, HTSUS, is that users of canoes and kayaks face forward and that users of racing shells face backward. The protestant also cites Headquarters Ruling (HQ) 088499 in support of this protest, in which Customs classified “kayaks” as canoes for purposes of classification under the HTSUS. The protestant then states that canoes, kayaks, and racing shells are made of similar materials and have similar shapes. The protestant references descriptions of the racing shells at issue, claiming that racing shells are similar to the kayaks described in HQ 088499 in terms of length, width, weight, height, and volume.
The HTSUS provisions under consideration are as follows:
Yachts and other vessels for pleasure or sports; row boats and canoes:
Row boats and canoes which are not of a type designed to be principally used with motors or sails:
Is the proper tariff classification for racing shells under subheading 8903.99.05, HTSUS as canoes, or under subheading 8903.99.15, HTSUS as row boats?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.
In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (ENs). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
None of the terms at issue here, i.e., kayak, canoe and row boat, are defined in legal notes to the HTSUS, nor are they described in the ENs. In such cases, tariff terms are normally construed in accordance with their common and commercial meanings, which are presumed to be the same. See United States v. C.J. Tower & Sons, 48 CCPA 21, C.A.D. 770 (1961), and related cases. In determining the common meaning of a term, it is appropriate to consult dictionaries, lexicons and other reliable sources of information. Merriam Webster’s Collegiate Dictionary (10th ed. 2002) defines a row boat as “a small boat designed to be rowed.” It defines rowing as a “[a means] to propel a boat by means of oars.” Therefore under this definition, a racing shell can be described as a “row boat,” and it can be classified under subheading 8903.99, HTSUS. This is further reinforced by reviewing the ENs, which state that Chapter 89, HTSUS, “covers ships, boats and vessels of all kinds (whether or not self propelled) . . . ” Chapter 89, EN 89.03, states that “[t]his heading includes yachts, marine jets and other sailboats and motorboats, dinghies, kayaks, sculls, skiffs, pedalos (a type of pedal-operated float), sports fishing vessels, inflatable craft and boats which can be folded or disassembled. This heading also covers lifeboats propelled by oars” (emphasis added). Merriam Webster’s Collegiate Dictionary defines a scull, in part as “ . . . a racing shell propelled by one or two persons using sculls [type of oar, usually less than 10 feet long.]” Taken together, these sources support classification of racing shells in subheading 8903.99, HTSUS.
The next issue is whether a racing shell can be classified as a canoe or a row boat. The protestant cites HQ 088499 in support of his contention that racing shells are similar to kayaks and canoes and should be classified as canoes. In HQ 088499, we noted that kayaks and canoes had similar form, design, and size; they both can be propelled by users who paddle the craft from the center; and in both craft, the users faced forward.
Shells are narrow boats that are rowed. Shell rowers propel the craft with oars rather than paddles; by design, the oars are usually attached to the boat or fitted between two pins on the side of the boat by oar locks or gunnels which act as a fulcrum. This is because the oar acts as a lever in a succession of strokes to propel the boat. According to the Encyclopedia Britannica, in order to propel the boat:
The oarsman, seated with his feet resting on a brace, or stretcher, covers (dips) his blade square in the water (the entry). Then [the oarsman] uses his legs, shoulders, and body weight to exert pressure against the oar, which functions as a lever turning around its fulcrum to drive the craft past the point of entry [of the oar into the water]. He completes the stroke by lifting the blade out of the water (the finish) and swings forward to begin the cycle again. . . . Fundamental factors in the mechanics of rowing are the position of the oar button, the height of the rigging [braces supporting the oarlock], the setting of the thole or swivel pin, and outboard length of the oar, which together determine the amount of leverage available.
Modern boats may have other devices designed to keep the oars from slipping overboard. Racing shells are generally propelled with single-bladed oars, not paddles. Further these oars, are usually locked into place by anchors, pins or braces called rigging, as opposed to being held freely in the hands of the paddler, as is the case for canoes and kayaks. Rowers in racing shells sit in movable seats that run along tracks in order to make the rowing motion more efficient; paddlers in canoes and kayaks generally sit in stationary seats. Moreover, in racing shells the user generally faces the stern, as in row boats, rather than facing the bow, as in canoes and kayaks. Therefore, racing shells can be distinguished from canoes and kayaks, based on the method of propulsion (rowing versus paddling), as well as, generally speaking, the direction the user faces.
Therefore, based on the foregoing analysis, we conclude that the racing shells at issue are within the common meaning of the term “row boat” and are classifiable under subheading 8903.99.15, HTSUS, as boats that are rowed. This conclusion is consistent with NY C85640, dated March 19, 1998, previously cited.
Under the authority of GRI 1, the racing shells are provided for in heading 8903. They are classifiable under subheading 8903.99.15, as “Yachts and other vessels for pleasure or sports; row boats and canoes: . . . Other: . . . row boats and canoes which are not of a type designed to be principally used with motors or sails: . . . Other.” Accordingly, this protest should be DENIED.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Myles B. Harmon
Commercial Rulings Division