CLA-2 CO:R:C:G 087851 WAW
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
Commercial Rulings Division