**HQ** 965997

November 25, 2002

**CLA-2 RR:CR:GC** 965997 DSS

# **CATEGORY**: Classification

**TARIFF NO.**: 8903.99.15

Acting Port Director of Customs

Portland Area

P.O. Box 55580

Portland, OR 97238

# **RE**: Further Review of Protest 2904-02-100261; Racing Shells

Dear Port Director:

This is in response to the request for Further Review of Protest No.
2904-02-100261, dated September 17, 2002, filed by James Sims, regarding
the tariff classification of racing shells under the Harmonized Tariff
Schedule of the United States (HTSUS). The entry was liquidated on
September 13, 2002, and this protest was timely filed on September 17,
2002.

**FACTS**:

The product at issue is racing shells. The protestant has submitted
several drawings and photographs of shells, kayaks, and canoes. Shells
are made in various sizes to accommodate one or several users. The
protestant reports the subject racing shells are primarily made of
plastics, and epoxy resins, and they incorporate the
"honeycomb/sandwich" design found in racing boat construction.

The racing shells were entered under subheading 8903.99.05, HTSUS, as
"canoes which are not of a type designed to be principally used with
motors or sails." However, the entry was liquidated under the subheading
8903.99.15, as "row boats and canoes, other." You relied on New York
Ruling (NY) C85640, dated March 19, 1998, which classified rowing shells
under subheading 8903.99.15, HTSUS.

The protestant claims that the only difference between canoes and
kayaks, which are classified under subheading 8903.99.05, HTSUS, and row
boats, which are classified under 8903.99.15, HTSUS, is that users of
canoes and kayaks face forward and that users of racing shells face
backward. The protestant also cites Headquarters Ruling (HQ) 088499 in
support of this protest, in which Customs classified "kayaks" as canoes
for purposes of classification under the HTSUS. The protestant then
states that canoes, kayaks, and racing shells are made of similar
materials and have similar shapes. The protestant references
descriptions of the racing shells at issue, claiming that racing shells
are similar to the kayaks described in HQ 088499 in terms of length,
width, weight, height, and volume.

The HTSUS provisions under consideration are as follows:

8903. Yachts and other vessels for pleasure or sports; row boats and
      canoes:

> \*\*\*\*\*\*\*\*\*\*\*\*

99. Other:

> Row boats and canoes which are not of a type designed to be
> principally used with motors or sails:

8903.99.05 Canoes

8903.99.15 Other

**ISSUE**:

Is the proper tariff classification for racing shells under subheading
8903.99.05, HTSUS as canoes, or under subheading 8903.99.15, HTSUS as
row boats?

**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 may then be applied. In other words, classification is
governed first by the terms of the headings of the tariff and any
relative section or chapter notes.

In interpreting the headings and subheadings, Customs looks to the
Harmonized Commodity Description and Coding System Explanatory Notes
(ENs). Although not legally binding, they provide a commentary on the
scope of each heading of the HTSUS. It is Customs practice to follow,
whenever possible, the terms of the ENs when interpreting the HTSUS.
*See* T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

None of the terms at issue here, *i.e.*, kayak, canoe and row boat, are
defined in legal notes to the HTSUS, nor are they described in the ENs.
In such cases, tariff terms are normally construed in accordance with
their common and commercial meanings, which are presumed to be the same.
*See United States v. C.J. Tower & Sons*, 48 CCPA 21, C.A.D. 770 (1961),
and related cases. In determining the common meaning of a term, it is
appropriate to consult dictionaries, lexicons and other reliable sources
of information. *Merriam Webster's Collegiate Dictionary* (10^th^ ed.
2002) defines a row boat as "a small boat designed to be rowed." It
defines rowing as a "\[a means\] to propel a boat by means of oars."
Therefore under this definition, a racing shell can be described as a
"row boat," and it can be classified under subheading 8903.99, HTSUS.
This is further reinforced by reviewing the ENs, which state that
Chapter 89, HTSUS, "covers ships, boats and vessels of all kinds
(whether or not self propelled) . . . " Chapter 89, EN 89.03, states
that "\[t\]his heading includes yachts, marine jets and other sailboats
and motorboats, dinghies, kayaks, **sculls**, skiffs, pedalos (a type of
pedal-operated float), sports fishing vessels, inflatable craft and
boats which can be folded or disassembled. This heading also covers
lifeboats propelled by oars" (emphasis added). *Merriam Webster's
Collegiate Dictionary* defines a scull, in part as " . . . a racing
shell propelled by one or two persons using sculls \[type of oar,
usually less than 10 feet long.\]" Taken together, these sources support
classification of racing shells in subheading 8903.99, HTSUS.

The next issue is whether a racing shell can be classified as a canoe or
a row boat. The protestant cites HQ 088499 in support of his contention
that racing shells are similar to kayaks and canoes and should be
classified as canoes. In HQ 088499, we noted that kayaks and canoes had
similar form, design, and size; they both can be propelled by users who
paddle the craft from the center; and in both craft, the users faced
forward.

Shells are narrow boats that are rowed. Shell rowers propel the craft
with oars rather than paddles; by design, the oars are usually attached
to the boat or fitted between two pins on the side of the boat by oar
locks or gunnels which act as a fulcrum. This is because the oar acts as
a lever in a succession of strokes to propel the boat. According to the
*Encyclopedia Britannica*, in order to propel the boat:

The oarsman, seated with his feet resting on a brace, or stretcher,
covers (dips) his blade square in the water (the entry). Then \[the
oarsman\] uses his legs, shoulders, and body weight to exert pressure
against the oar, which functions as a lever turning around its fulcrum
to drive the craft past the point of entry \[of the oar into the
water\]. He completes the stroke by lifting the blade out of the water
(the finish) and swings forward to begin the cycle again. . . .
Fundamental factors in the mechanics of rowing are the position of the
oar button, the height of the rigging \[braces supporting the oarlock\],
the setting of the thole or swivel pin, and outboard length of the oar,
which together determine the amount of leverage available.

Modern boats may have other devices designed to keep the oars from
slipping overboard. Racing shells are generally propelled with
single-bladed oars, not paddles. Further these oars, are usually locked
into place by anchors, pins or braces called rigging, as opposed to
being held freely in the hands of the paddler, as is the case for canoes
and kayaks. Rowers in racing shells sit in movable seats that run along
tracks in order to make the rowing motion more efficient; paddlers in
canoes and kayaks generally sit in stationary seats. Moreover, in racing
shells the user generally faces the stern, as in row boats, rather than
facing the bow, as in canoes and kayaks. Therefore, racing shells can be
distinguished from canoes and kayaks, based on the method of propulsion
(rowing versus paddling), as well as, generally speaking, the direction
the user faces.

Therefore, based on the foregoing analysis, we conclude that the racing
shells at issue are within the common meaning of the term "row boat" and
are classifiable under subheading 8903.99.15, HTSUS, as boats that are
rowed. This conclusion is consistent with NY C85640, dated March 19,
1998, previously cited.

**HOLDING**:

Under the authority of GRI 1, the racing shells are provided for in
heading 8903. They are classifiable under subheading 8903.99.15, as
"Yachts and other vessels for pleasure or sports; row boats and canoes:
. . . Other: . . . row boats and canoes which are not of a type designed
to be principally used with motors or sails: . . . Other." Accordingly,
this protest should be DENIED.

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 Customs Form 19, to the protestant no
later than 60 days from the date of this letter. Any reliquidation of
the entry or entries in accordance with decision must be accomplished
prior to mailing 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.gov](http://www.customs.gov/), by means
of the Freedom of Information Act, and other methods of public
distribution.

Sincerely,

/s/

Myles B. Harmon

Acting Director,

> Commercial Rulings Division