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HQ 964360




August 15, 2000

CLA-2 RR:CR:GC 964360 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 8804.00.00

Port Director
U.S. Customs Service
1000 2nd Avenue
Seattle, WA 98104-1049

RE: Protest 3001-00-100153; Paragliders

Dear Sir:

This is our decision regarding Protest 3001-00-100153 filed on behalf of Personal Flight, Inc. (“protestant”) concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of paragliders.

FACTS:

The entry at issue was filed on December 1, 1998, and was liquidated on January 21, 2000. The protest was filed on April 3, 2000.

The merchandise was entered under subheading 8802.20.00, HTSUS, as airplanes and other aircraft.

The entry was rate advanced and liquidated under subheading 8804.00.00, HTSUS, as: “Parachutes (including dirigible parachutes and paragliders) and rotochutes ”

In the Customs Protest Report (CF 6445A), the merchandise is described as follows: “XIX Inter 1.2 Intermediate Paraglider; XIX Inter 1.2 XL Intermediate Paraglider; XIX Inter 1.2 XXL Intermediate Paraglider; Line Set Inter 1.2 XL.”

The protestant now contends that the articles are classified in subheading 8803.30.00, HTSUS, as other parts of airplanes. The protestant states:

Merchandise entered on this invoice are for wings specifically designed for sky bikes developed by Personal Flight. The sky bike has three different models, each having either a 22hp or 15hp motor. These sky bikes have longer control mechanisms which are reached above the shoulder versus the waistline on regular paragliders.

ISSUE:

Are the subject articles classified in subheading 8803.30.00, HTSUS, as other parts of airplanes or heliocopters or in subheading 8804.00.00. HTSUS, as paragliders?

LAW AND ANALYSIS:

We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). 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 GRI’s may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The competing provisions are as follows:

Parts of goods of heading 8801 or 8802:

Other parts or airplanes or heliocopters
Parachutes (including dirigible parachutes and paragliders) and rotochutes; parts thereof and accessories thereto[.]

EN 88.04 provides:

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 canopy or shroud (wing), cord shroud lines for steering in air currents and a harness for the pilot. [Emphasis in original.]

In HQ 957928 dated July 17, 1995, we held paragliders to be classifiable under subheading 8804.00.00, HTSUS, which at that time covered “Parachutes (including dirigible parachutes) and rotochutes; parts thereof and accessories thereto” (i.e., the word “paragliders” was not in the subheading at that time). In that ruling, we stated:

The articles in question are paragliders, which 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 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.

Similarly, in HQ 955280 dated March 14, 1994, we held certain paragliders to be classifiable in subheading 8804.00.00, HTSUS.

Our research has disclosed that the fact that the subject articles are used with motors does not take them out of the paraglider category, e.g., on the Internet we have found a list of paraglider motor manufacturers and retailers.

We note that the protestant refers to the subject articles as paragliders in its brochure, e.g., “Personal Flight, Inc. offers the most highly refined powered paraglider system in the world, known as Sky-Bike The passenger harness is linked to the paraglider ” Further, the articles are referred to as paragliders on the protestant’s web site, e.g., “The Inter 1.2 is a typical intermediate new generation Paraglider.”

The protestant cites one of the EN’s to 88.01 in support of its position, i.e., “ gliders fitted with or designed to be fitted with an engine are classified in heading 88.02.” [Emphasis in original.] Heading 8801 includes hang gliders, which are described in EN 88.01 and are distinct from paragliders. We note that there is no such exclusion for motorized paragliders in EN 88.04.

After a careful consideration of the available information, we find that the subject articles are paragliders. Subheading 8804.00.00, HTSUS, describes paragliders eo nomine. An eo nomine designation is one which describes a commodity be a specific name, typically one well known to commerce. United States v. Paul M.W. Bruckmann, 65 CCPA 90, C.A.D. 1211, 582 F. 2d 622 (1978). An eo nomine designation, without limitation or a shown contrary legislative intent, judicial decision, or administrative practice, and without proof of commercial designation, will include all types of the article. Nootka Packing Co. v. United States, 22 CCPA 464, T.D. 47464 (1935); Crosse & Blackwell Co. v. United States, 36 CCPA 33, C.A.D. 393 (1948) and cases cited therein; T.M. Duche & Sons, Inc. et al v. United States, 44 CCPA 60, C.A.D. 638 (1957). See also, Ruth Sturm, Customs Law & Administration.

Accordingly, we find that the subject paragliders are classified in subheading 8804.00.00, HTSUS. There is no basis upon which we may conclude that paragliders designed or intended to be used with motors are not described in subheading 8804.00.00, HTSUS.

HOLDING:

The articles are paragliders which are classified in subheading 8804.00.00, HTSUS.

You are instructed to DENY the protest.

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 the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of 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.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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