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HQ 955280


March 14, 1994

CLA-2 CO:R:C:M 955280 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 8804.00.00

Ms. Kris Chapple
Charles M. Schayer & Co.
3839 Newport Street
Denver, Colorado 80207

RE: Apache II Paragliders; heading 8801; EN 88.04; Doc. 37.533, Tenth Session of HSC, October 1992

Dear Ms. Chapple:

This is in response to your undated letter to Customs in New York requesting, on behalf of NAS Distributing, Inc., the classification of paragliders under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was referred to this office for a response.

FACTS:

The articles in question are referred to as Apache II Paragliders. Paragliders have non-porous canopies and other features similar to those of a parachute (shape, cord shroud lines, pilot's harness). However, this similarity does not extend to their aerodynamic behavior. Under certain conditions, paragliders, like gliders and hang gliders, can follow ascending trajectories. Parachutes, which have highly porous canopies, follow purely descending trajectories.

ISSUE:

Whether the Apache II Paragliders are classifiable under heading 8801, HTSUS, which provides for gliders, hang gliders and other non-powered aircraft, or under heading 8804, HTSUS, which provides for parachutes (including dirigible parachutes).

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS - 2 -
govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."

The headings at issue are as follows:

8801 Balloons and dirigibles; gliders, hang gliders and other non-powered aircraft

8804 Parachutes (including dirigible parachutes) and rotochutes; parts thereof and accessories thereto

Under Article 7 of the Harmonized System Convention, the Harmonized System Committee (HSC) is established to prepare Explanatory Notes, Classification opinions and other advice as guidance for the interpretation of the Harmonized System. This guidance can take the form of classification decisions.

At its Tenth Session in October 1992 (see Doc. 37.533), the HSC determined that paragliders were classifiable under heading 8804, HTSUS. The Committee also voted to amend the heading text to read as follows [changes are underlined]:

Parachutes (including dirigible parachutes and paragliders) and rotochutes; parts and accessories thereto.

The HSC further voted to amend the text of Harmonized Commodity Description and Coding System Explanatory Note (EN) 88.04. These notes constitute the Customs Co-operation Council's official interpretation of the Harmonized System. While not legally binding, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings. The following language was added to the text of EN 88.04:

This heading also covers paragliders which are designed for launching oneself from the side of a mountain, the top of a cliff, etc. and which consist of a folding shroud (wing), cord shroud lines for steering in air currents and a harness for the pilot.

However, their similarity to parachutes does not extend to aerodynamic behaviour : under certain conditions and if air currents so permit, paragliders may follow ascending trajectories.

Under the procedure for amendments to the Harmonized System set out in Article 16 of the Harmonized System convention, these amendments were submitted to the Customs Co-operation Council. The amendments will, unless an objection is lodged by one or more contracting parties, become effective at the international level on January 1, 1996. As is the case with all such amendments, they are subject to the procedure for implementation provided in Section 1205 and 1206 of the Omnibus and Competitiveness Act of 1988.

Pursuant to the amendments of heading 8804, HTSUS, and EN 88.04, paragliders will be classified in the provision for parachutes under heading 8804, HTSUS, effective January 1, 1996. We note that the HSC recognized that paragliders were similar to parachutes, especially dirigible parachutes, in that they have a harness and shroud lines, as well as the same shape and construction, although the paragliders' non-porous materials allow them to capture air and follow an ascending trajectory.

It is our opinion that the amendments to heading 8804, HTSUS, and to EN 88.04, are essentially a clarification of what has been previously considered "parachutes" under the HTSUS. Therefore, the paragliders in question are presently classifiable under heading 8804, HTSUS, specifically under subheading 8804.00.00, HTSUS.

HOLDING:

The Apache II Paragliders are classifiable under subheading 8804.00.00, HTSUS, which provides for parachutes (including dirigible parachutes). The corresponding rate of duty for articles of this subheading is 6% ad valorem.

Sincerely,

John Durant, Director

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