What's the HS Code for "Skis"?

HQ 959632 February 18, 1998 CLA-2 RR:CR:GC 959632 RTR CATEGORY: Classification TARIFF NO.: 9506.11.40 Mr. James B. Silliman Fritz Companies, Inc. 2520 Aviation Way, Unit H Colorado Springs, CO 80916 RE: Telemark skis; randonee skis; cross-country (Nordic) skis; downhill (Alpine) skis; free-heal bindings; fixed-heal bindings; hybrid skis for downhill and cross-country applications Dear Mr. Silliman: This is in response to your letter, dated August 5, 1996, on behalf of Cima, Inc., DBA Tua Ski Company, regarding the tariff classification of telemark and randonee skis under the Harmonized Tariff Schedule of the United States (HTSUS). We regret the delay in responding. FACTS: The merchandise consists of "telemark" or "randonee" skis (collectively hereinafter "telemark"), which are suitable for both downhill and cross-country skiing, and are imported without bindings. Whereas in the past it was necessary for the downhill skier to change equipment before switching to a cross-country course (and vice-versa), by using telemark skis in conjunction with "free-heal" bindings, it is currently possible to traverse a ski course, which includes both downhill and cross-country terrain, without changing equipment. A skier versed in the telemark turning technique can alternate freely between downhill and cross-country trails. In your letter you state that "contemporary construction of telemark' skis differs little... from Alpine ski construction." Furthermore, there are significant differences between cross country skis and telemark skis. Telemark skis have an hour-glass ("Q-tip") shape, metal edge, and single camber construction, which allows for torsional flexibility (ski becomes flat when under pressure). While cross-country skis generally do not possess these characteristics, downhill skis (particularly "giant slalom" downhill skis) generally have all of them. The provisions under consideration are as follows: 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: Snow skis and other snow ski equipment; parts and accessories thereof: 9506.11 Skis and parts and accessories thereof, except ski poles: 9506.11.20 Cross-country skis 9506.11.40 Other skis ISSUE: Whether telemark skis are classifiable as "cross-country skis" in subheading 9506.11.20, HTSUS, or as "other skis" in subheading 9506.11.40, HTSUS. LAW AND ANALYSIS: Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. You contend that for classification purposes telemark skis should be treated as cross-country skis of subheading 9506.11.20, HTSUS, because the intended use at the time of importation is cross-country skiing. We disagree. In HQ 085523, dated December 23, 1989, in which snowboards were classified in subheading 9506.11.40, HTSUS, Customs reasoned that subheading 9506.11, HTSUS, embraces elements of a use provision and an eo nomine provision. In part, the provision describes skis of a class or kind principally used to glide over snow. However, the principal issue centered around the determination of whether or not snowboard skis qualify as "skis" as that term is used in the nomenclature. Likewise, in the case of telemark skis, the determination to be made is not whether they are used in the same manner as cross-country skis, but whether they are, in fact, cross country skis, as that term is used in the nomenclature, and thus, whether they should be included in the eo nomine provision for cross country skis. In general, the characteristics of downhill skis are: an hour-glass ("Q-tip") shape, metal edge, and single camber construction, which allows for torsional flexibility (ski becomes flat when under pressure). In general, the characteristics of cross-country skis are: a uniform silhouette (width is nearly consistent at tip, waist and tail), no metal edge (because there is no need to cut snow in cross-country skiing), and double camber construction for high torsional stiffness (allows ski to maintain concavity even when under pressure). The following chart further illustrates the characteristics of telemark, downhill and cross-country skis. Ski Type Metal Edge Hour-glass Shape Torsional Flexibility Telemark yes yes flexible Downhill yes yes flexible Cross-country no no stiff It is well settled that merchandise must be classified with reference to its condition as imported. Thus, it is of no relevance that free-heal bindings are eventually affixed to telemark skis. The critical consideration is that they are imported without the bindings of any kind, and therefore, do not bear a similarity to the cross-country skis of subheading 9506.11.20, HTSUS. Rather, they strongly resemble downhill skis, which are classified in subheading 9506.11.40, HTSUS, for 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, sail boards and other water-sport equipment; parts and accessories thereof: skis and parts and accessories thereof, except ski poles: cross-country skis; other skis. You also argue for the application of GRIs 3 and 4. However, we believe that the classification of telemark skis can be accomplished at the GRI 1 level, because of the nature of the merchandise, and the language of subheading 9506.11, HTSUS. For these reasons, telemark skis are closer in construction to downhill skis than to cross-country skis, and are classifiable in subheading 9506.11.40, HTSUS, 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, sail boards and other water-sport equipment; parts and accessories thereof: Skis and parts and accessories thereof, except ski poles: Cross-country skis; Other skis. HOLDING: Pursuant to GRI 1, telemark snow skis are properly classified under subheading 9506.11.40, HTSUS, as 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, sail boards and other water-sport equipment; parts and accessories thereof: Skis and parts and accessories thereof, except ski poles: Cross-country skis; Other skis. The rate of duty is 3.1% ad valorem. Sincerely, John Durant, Director Commercial Rulings Division

HQ 085523 December 23, 1989 CLA-1 CO:R:C:G 085523 KWM CATEGORY: Classification TARIFF: 9506.11.4000 Donna Gaston Carpenter Burton Snowboards Manchester Center, Vermont 05255 Re: Request for Reclassification Dear Ms. Carpenter, We have received your letter dated August 22, 1989, requesting "duty reclassification" for snowboard skis. No sample was submitted with your request, although we have received copies of several publications relating to snowboard skis and the snow skiing industry. For the reasons detailed below, we agree with your assertion that snowboard skis are properly classified in subheading 9506.11.4000, HTSUS. FACTS: On January 15, 1987, our New York office issued to you a ruling letter classifying snowboard skis to be imported from Austria. That letter provided a binding tariff classification under the Tariff Schedule of the United States (hereinafter "TSUS"), the tariff schedule in effect at that time. It also provided, for advisory purposes only, a prospective classification under the Harmonized Tariff Schedule of the United States Annotated (hereinafter "HTSUS"). Since the HTSUS classification was clearly denoted as advisory only, and not subject to challenge, we regard your letter of August 22, 1989, as a new and separate request for a binding classification ruling under the HTSUS. Your letter refers to the goods imported in this case as "snowboard skis". You have not indicated the country of origin for the snowboard skis in question. The information submitted with your letter indicates that snowboard skis are similar to traditional alpine skis in that they possess some of the same characteristics. In addition, the materials and construction techniques used to manufacture both types of skis is almost identical. However, there are two primary distinctions between alpine and snowboard skis: (1) snowboard skis are shorter and wider than alpine skis, and (2) snowboard skis are sold and used singly rather than in pairs. Although snowboard skis utilize bindings for fastening the feet to the board, we understand that the snowboard skis in question are imported without bindings attached. Bindings are imported separately, and are not included in this classification request. ISSUE: How are snowboard skis classified under the Harmonized Tariff Schedule of the United States? LAW AND ANALYSIS: Classification under the Harmonized Tariff Schedule of the United States (hereinafter "HTSUS") is made according to the General Rules of Interpretation (hereinafter "GRI(s)") 1 through 5. The systematic detail of the Harmonized System 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 relevant Section or Chapter Notes. Then, if GRI 1 fails to classify the goods, and if the headings and legal notes do not otherwise require, the remaining GRIs may be applied, taken in order. At the outset, it is clear that these goods are an "article" or piece of "equipment" for "athletics . . . or outdoors sports" of heading 9506, HTSUS. In addition, the nature of the goods in this case implies use for a snow sport or snow related activity. Therefore, subheadings 9506.11 through 9506.19, HTSUS, may be eligible for classification of the goods. Those subheadings, primarily 9506.11, HTSUS, provide, in pertinent part: Articles and equipment for gymnastics, athletics, other sports or outdoor games . . . . . . . . . . . . . . . 9506 Snow-skis and other snow-ski equipment; parts and accessories thereof: 9506.11 Skis and parts and accessories thereof, except ski poles: 9506.11.20 Cross-country skis . . . . . . . . 9506.11.40 Other skis . . . . . . . . . . . . Neither the Legal Notes nor the Explanatory Notes prescribe any criteria for the inclusion of goods in subheadings 9506.11 through 9506.19, HTSUS. 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 9506.11.4000, HTSUS, snowboard skis would fall within the "basket" provisions of subheading 9506.99.6080, HTSUS, as Other athletic articles and equipment . . .; Other; Other; Other; Other. Subheading 9506.11, HTSUS, embraces elements of a use provision and an eo nomine provision. In part, the provision describes skis of a class or kind principally used to glide over snow. However, the principal issue in this instance centers around the determination of whether or not snowboard skis qualify as "skis" as that term is used in the nomenclature. It is well settled that the meaning of a particular tariff term is a question of law, while the determination of whether a particular item fits within that definition is a question of fact. Hasbro Industries Inc. v. United States, 879 F.2d 838, 840 (Fed.Cir. 1989). The meaning of an eo nomine classification is determined as of the time of enactment of the tariff provisions. However, that meaning is not fixed in that an eo nomine provision includes all articles subsequently created which come within its scope. FAG Bearings, Ltd. v. United States, 9 CIT 227, 228 (1985) (citations omitted). To determine the meaning of a tariff term at the time of enactment, Customs looks to indices of Congressional intent, and classifies goods to carry out that intent. However, in this case, we have found no clear indication of Congressional intent with regard to these items. Failing a clear statement of Congressional intent, tariff terms are construed in accordance with their common and commercial meanings, which are presumed to be the same. Nippon Kogaku (USA) Inc. v. United States, 673 F.2d 380 (1982). Congress is presumed to know the language of commerce and to have framed tariff acts so as to classify commodities according to general usage and denomination of the trade. Nylos Trading Company v. United States, 37 CCPA 71, C.A.D. 422 (1949). To ascertain the common [and commercial] meaning [of a tariff term], in addition to relying upon its own understanding of the terms used, the courts may consult dictionaries, lexicons, the testimony of record, and other reliable sources of information as an aid to its knowledge. Pistorino & Co., Inc. v. United States, 461 F.Supp. 331, 334 (1978). In this case, we have reluctantly concluded that no precise definition of the term "ski" can be determined. In reaching that conclusion, we have considered a number of factors. We note that the status of snowboard skis has changed since the inception of the sport a few years ago. The material supplied by you with regard to professional ski instruction, the inclusion of snowboard skis in the ASTM classifications for snow skiing, and the actions by ski area administrators toward snowboard ski safety regulation all indicate that snowboard skis have become a part of the snow skiing industry. While snowboard skis may not have gained unconditional acceptance among snow skiing purists, we do not consider the relative newness of snowboard skiing to be an impediment to classification of snowboard skis within the snow skiing headings of the tariff schedule. However, it must influence a determination whether snowboard skis fall within the common or trade meaning of "skis". In addition, snowboard skis, are, for the most part, similar to traditional skis in the materials used, the production processes and construction methods used, and applicable terminology. The shape and form of snowboard skis, their use in the same recreational areas, the interaction of the users, and the nature of the goods all suggest a very close relationship between snowboard skis and traditional skis. However, clear distinctions lie in the differing lengths, widths, and the mechanics of use of the goods (i.e., snowboard skis are used singularly, rather than in pairs). We do not consider these differences significant enough to, prima facie, prevent their classification as "skis" in subheading 9506.11.4000, HTSUS. In fact, we note that traditional forms of skis also vary in length and width, albeit not to the degree that snowboard skis do. Lastly, we have made reference to the dictionary definitions of "skis", a representative definition of which states: ski - 1.a. One of a pair of long, flat runners of wood, metal or plastic that curve upward in front and may be attached to a boot for gliding or traveling over snow.The American Heritage Dictionary, Second College Edition (1985). With the exception of the reference to "one of a pair", snowboard skis fit within this definition. As we noted above, we do not consider the use of snowboard skis in a singular manner to be determinative to eo nomine classification. However, as discussed below, it must influence any factual determination of whether snowboard skis are considered "skis" in the tariff schedule. We also note that dictionary definitions describe the traditional type of ski. That distinction, like the absence of Congressional intent, may be attributable to the relatively recent onset of snowboard ski popularity, i.e., that these are new commodities under the tariff schedule. Having determined that no precise common or trade definition exists for "skis", we are faced with a factual determination, based on the submissions in this case and upon our own understanding of the tariff schedule, of whether snowboard skis fall with subheading 9506.11.4000, HTSUS. 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, supra, at 229. It is true that snowboard skis have certain physical characteristics not possessed by traditional skis, and vice versa. However, we are of the opinion that these characteristics merely serve to distinguish the two items. Snowboard skis, are, simply put, a specialized form of the traditional "ski". Discussions with persons familiar with the industry have indicated to us that, in the trade, "skis" in general may be considered to be composed of at least two different types: cross- country skis and alpine skis. It is unsettled whether or not snowboard skis, or other specialty skis (for example those designed specifically for ski jumping) are properly considered to be separate types of "skis" or are actually sub-categories of alpine skis. That determination is beyond the scope of this ruling, and we do not make such a determination here. Regardless of that determination, we are of the opinion that snowboard skis are a "ski" of some type. Lastly, we have considered the use of snowboard skis in comparison with the use of traditional skis, particularly traditional alpine skis. While it is true that the mechanical and physical use of snowboard skis is distinctly different from that of traditional alpine skis, we are of the opinion that these differences only incidentally influence the characteristics of "skis"; that is, to provide a method for traveling or gliding over snow by use of one or a pair of a long, narrow devices attached at the foot. In summary, it is our opinion that the meaning of the term "snow skis" is imprecise such that a clear definition of that term cannot be determined. That it is an item used for athletics or other sports, particularly for traveling of gliding over snow is clear from the terms of the heading, and from common or trade usage. And, while we consider the factual determination of whether a snowboard ski is within the meaning of the eo nomine term "skis" to be a close call, we are of the opinion that "skis" does include items such as those at issue here. That determination is based on the finding that snowboard skis possess an essential resemblance to traditional skis, coupled with the growing acceptance of snowboard skis as a legitimate form of snow sport recreation in the same class as traditional skiing. HOLDING: Having determined that snowboard skis are "snow skis" within the meaning of that term as used in the tariff schedule, snowboard skis, without bindings, are classified in subheading 9506.11.4000, HTSUS, as "Other skis". As such, they are dutiable at the rate of 5.1% ad valorem. John A. Durant Director Commercial Rulings Division

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