OT:RR:CTF:CPMM H287584 KSG
Edith Tolchin
DGT Global Trading
P.O. Box 231
Florida, NY 10921
Debbie Carchidi
Quicksilver
5600 Argosy Circle, #300
Huntington Beach, CA 92649
Marc Iannini
Surfsling International, Inc.
170 E. 17th Street, Suite 211
Costa Mesa, CA 92627
RE: Revocation of NY N019824, NY M81749 and NY K80289; tariff classification of surfboard racks and other items
Dear Ms. Tolchin, Ms. Carchidi and Mr. Iannini:
This letter is in reference to New York Ruling Letter (NY) N019824, dated November 29, 2007, NY M81749, dated April 5, 2006, and NY K80289, dated November 13, 2003, regarding the tariff classification of surfboard transport systems ("surfboard racks"), slings to carry a surfboard, tie-down straps, and a "Nose Boot" under the Harmonized Tariff Schedule of the United States (HTSUS).
In NY N019824, U.S. Customs & Border Protection (CBP) classified three styles of surfboard racks and tie-down straps in subheading 9506.29.00, HTSUS, as accessories to a surfboard. In NY M81749, CBP classified two styles of surfboard racks (“Gate Rack” and a “Strap Pad”), a “Nose Boot,” a “Board Sling,” and tie-down straps in subheading 9506.29.00, HTSUS, as accessories to a surfboard. Lastly, in NY K80289, dated November 13, 2003, CBP classified a "Surfsling" in subheading 9506.29.00, HTSUS, as an accessory to a surfboard.
We have reviewed NY N019824, NY M81749 and NY K80289, and determined that the rulings are in error. Accordingly, for the reasons set forth below, CBP is revoking NY N019824, NY M81749 and NY K80289.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as
amended by section 623 of Title VI, notice proposing to revoke NY N019824, NY M81749 and NY K80289 was published on September 25, 2019, in Volume 53, Number 34, of the Customs Bulletin. No comments were received in response to this Notice.
FACTS:
In NY N019824, four articles were classified as surfboard accessories: three surfboard racks and tie-down straps. The three surfboard racks are designed to be mounted on the exterior roof of an automobile or on a pickup truck to carry a surfboard on a moving motor vehicle when there is no permanent rack on the motor vehicle. The surfboard racks are: the Aerial Roof Pad, the Tailgate Pad, and the Single Soft Rack. The Aerial Roof Pad is described as two pads of 100% polyester foam padding and a secure closure in a nylon storage bag. The Tailgate Pad is made of 100% polyester foam padding, rubber backing, nylon straps, and plastic adjustment clasps. The Tailgate Pad holds a surfboard securely on a pickup truck tailgate. Lastly, the Single Soft Rack is described as 100% polyester foam padding, nylon straps, rubber backing and metal clasps sold in a nylon storage bag. It is designed to carry a surfboard on an automobile. The tie-down straps are constructed of 100% nylon with a metal clamp covered with neoprene and are designed to secure an article to a motor vehicle.
In NY M81749 five articles were classified as surfboard accessories: two surfboard racks designed to be mounted on the exterior roof of an automobile or on a pickup truck to carry a surfboard when there is no permanent rack on the motor vehicle, a “Nose Boot,” a “Board Sling,” and tie-down straps. The two surfboard racks are the Gate Rack and the Strap Pad.
A Gate Rack is constructed of textile material, foam, and non-slip neoprene that is packaged in a mesh bag. The Gate Rack is used to transport a surfboard on a pickup truck. A Strap Pad is constructed of the same material as the Gate Rack but is used to transport a surfboard on the roof of an automobile.
A Nose Boot is made of polyester or nylon and protects the end of a surfboard when it is being transported. A Board Sling is described as made of either polyester or nylon and used to facilitate the transport of a surfboard on the shoulder of the surfer. The tie-down straps are made of webbing material, packaged two in a mesh bag.
In NY K80289, CBP classified a "Surfsling" described as a device to enable a surfer to physically transport a surfboard with little physical assistance and to protect the board from scratching. The website SURFSLING, http://www.surfsling.com/slng.php (last visited May 13, 2019), describes the Surfsling as a full length terry/velour beach towel with hardware on either side. The images show a beach towel with a strip of material on either end with hooks on one side and holes on the other side. A strap with a handle is sold with the article. Its use is described on the website as including use as a beach towel, a changing device, a beach bag, to carry a wetsuit and "for any outdoor activity."
ISSUE:
Whether the surfboard racks, slings and tie-down straps are properly classified in heading 9506, HTSUS, as accessories of surfboards, in heading 6307 as other made up articles, in heading 8479 as machinery or in heading 8708 as accessories of motor vehicles.
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 2 through 6 may then be applied in order.
GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above Rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this Rule the relative section and chapter notes also apply, unless the context otherwise requires.
The HTSUS headings under consideration are the following:
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:
Water skis, surf boards, sailboards and other water-sport equipment; parts and accessories thereof:
9506.29.00 Other
***
6307 Other made up articles, including dress patterns:
6307.90 Other:
6307.90.98 Other
***
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:
8479.89 Other:
8479.89.94 Other
***
8708 Parts and accessories of the motor vehicles of headings 8701 to 8705:
Other parts and accessories of bodies (including cabs):
8708.29 Other:
8708.29.50 Other
***
In Rollerblade, Inc. v. United States, 116 F. Supp. 2d 1247 (Ct. Int’l Trade 2000), the court held that protective gear used by an in-line skater such as elbow pads, knee pads and wrist guards were correctly classified as other sports equipment and not as an accessory to in-line roller skates. Since the HTSUS does not define the word “accessory,” the court looked at various dictionary definitions and concluded that “an accessory must relate directly to the thing accessorized.” There must be a direct relationship between the protective gear and the roller skates themselves. The court said that an accessory must contribute to the effectiveness of the principal article, widen the range of its uses, or improve its operation. The court then held that the protective gear did not accessorize roller skates but rather, the activity of skating or the comfort and safety of the person engaged in skating and therefore, the protective gear was not classified in heading 9506, HTSUS.
The surfboard racks, tie-down straps, slings and nose boot involved in this case are all similar to the protective gear in Rollerblade to the extent that they do not relate directly to the operation of surfboards or other water-sport equipment. None of these articles contribute to the effectiveness of a surfboard or other water-sport equipment, widen the range of its uses, or improve its operation. With regard to the Surfsling, it has the appearance of a beach towel and has a variety of possible uses. It is not designed to only be usable to carry a surfboard. Similarly, the tie-down straps are not narrowly designed to only be useable to secure a surfboard or other water-sport equipment. Thus, the surfboard racks, tie-down straps, slings and nose boot are not classified in heading 9506, HTSUS, as surfboard or other water-sport equipment accessories.
Section Note 3, Section XVII, HTSUS, limits items classified in Chapters 86 to 88 as parts or accessories to parts or accessories which are suitable for use solely or principally with the articles of those Chapters. The EN for chapter 87 states that motor vehicles designed for the transport of persons are classified in headings 8702 and 8703.
The EN for Heading 6307, HTSUS, states that it covers made up articles of any textile material which are not included more specifically in other headings.
I. Surfboard Racks (Aerial Roof Pad, Tailgate Pad, Single Soft Rack, Gate Rack and the Strap Pad)
The surfboard racks are designed solely or principally to be mounted on the exterior roof of an automobile or to be mounted on a pickup truck in order to securely carry a surfboard on a moving motor vehicle without damaging the motor vehicle or the surfboard. These surfboard racks provide for the safe and secure transport of a surfboard on an automobile or pickup truck that does not have a permanent roof rack. Therefore, they add an additional feature to the motor vehicle. Consistent with the analysis in Rollerblade, surfboard racks that are designed to be placed on the exterior roof of an automobile or pickup truck to carry a surfboard when the automobile or pickup truck does not have a permanent rack widens the range of the uses of the motor vehicle and would be classified as accessories to an automobile or pickup truck in heading 8708, HTSUS.
CBP has classified similar goods in subheading 8708.29.50, HTSUS. See NY K86958, dated June 15, 2004, classifying a foam canoe carrier and a foam kayak carrier in subheading 8708.29.50, HTSUS, and NY J83752, dated April 24, 2003, classifying a canoe carrier in subheading 8708.29.50, HTSUS. They are similar because they are also shaped foam and straps. Accordingly, we conclude that the surfboard racks are an accessory of an automobile or a pickup truck classified in heading 8708, HTSUS. In accordance with GRI 6, the surfboard racks are classified in subheading 8708.29.50, HTSUS.
II. Surfsling
In HQ H007654, dated July 8, 2009, CBP held that a sling for snow skis used to allow a user to carry their ski equipment hands-free were not classified in heading 9506, HTSUS, because they did not directly act on, contact the skis or contribute to their effectiveness. The ski equipment, which features a ratcheting closure system, was classified in heading 8479, HTSUS. The Board Sling and the Surfsling are items that allow for hands-free carrying of sports equipment as well as other items, like the sling for snow skis provided for in HQ H007654. Consistent with Rollerblade and HQ H007654, we find that the Board Sling and Surfsling do not relate directly to a surfboard, directly act on a surfboard, or contribute to the effectiveness, widen the range of uses of a surfboard or improve the operation of a surfboard. Accordingly, they are not accessories of a surfboard and would not be classified in heading 9506, HTSUS.
The Surfsling is not even particularly designed to carry surfboards and is described as functional for any outdoor activity and particularly useful as a beach towel. Based on the description of the Surfsling, it would be classified in heading 6307, and more particularly subheading 6307.90.98, HTSUS.
III. Tie-down straps and Board Sling
The tie-down straps would be classified in either heading 8479, HTSUS, as machines and mechanical appliances having individual functions, not otherwise specified, or in heading 6307, HTSUS, as other made up textile articles, depending on whether they have a ratchet or a cam buckle. In HQ H007654, CBP explained that heading 8479 includes a sling with a ratcheting closure system and tie-downs that have a ratchet mechanism. Since we have no information regarding the buckles or closure systems, we are unable to determine which heading is applicable for the Board Sling and the tie-down straps. The Board Sling may be an item similar to the tie-down straps, in which case, it would also be classified in either heading 8479, HTSUS, or in heading 6307, HTSUS.
IV. Nose Boot
The Nose Boot is also not an accessory to a surfboard. The Nose Boot is intended to protect the ends of a surfboard but does not directly act on the surfboard or contribute to the effectiveness of the surfboard, widen the range of its uses, or improve its operation. Therefore, pursuant to Rollerblade and in accordance with the rulings cited above, the Nose Boot would also not be classified as an accessory in heading 9506, HTSUS.
The Nose Boot is described as made of nylon or polyester, so it may be classified in heading 6307, HTSUS, as other made up textile articles. However, without further information regarding possible buckles or another closure system or if it has other pertinent features, we are unable to classify it.
HOLDING:
By application of GRI’s 1 and 6, the surfboard racks are classified in heading 8708 and specifically subheading 8708.29.50, HTSUS. The column one, general rate of duty is 2.5% ad valorem.
The Surfsling is classified in heading 6307 and specifically subheading 6307.90.98, HTSUS. The column one, general rate of duty is 7% ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided for at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N019824, NY M81749, and NY K80289 are revoked in accordance with the above analysis.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division