CLA-2 CO:R:C:G 085595 WAW
Ms. Marian R. Shelton
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, N.Y. 10017
RE: Request for Reconsideration of New York Ruling Letter 826863
concerning the classification of a combination bicycle and
bicycle bag
Dear Ms. Shelton:
This letter is in response to your request for a
reconsideration of NY Ruling Letter 826863, dated January 6,
1988, regarding the classification of a combination bicycle bag
and bicycle under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). A sample bicycle bag was submitted
for our review.
FACTS:
In New York Ruling Letter 826863, dated January 6, 1988,
this office classified a child's bicycle and carry bag under two
separate provisions. The bicycle was classified under subheading
8712.00.1020, HTSUSA, which provides for bicycles and other
cycles, not motorized: having both wheels exceeding 50 cm but not
exceeding 55 cm in diameter. The bicycle bag was classified
under subheading 4202.92.3030, HTSUSA, which provides for
travel, sports and similar bags: with outer surface of man-made
fibers.
The sample article is also a combination plastic bicycle bag
and bicycle. The bag is approximately 11 inches long at its
widest point by 6 inches high. There is a slide fastener located
across the top of the entire bag which is designed to open and
close the bag. At either side of the bag there are two short
nylon straps which snap around the handlebars of the bicycle.
Across the front of the bag as well as on the bicycle is the logo
"Starburst." The bicycle wheel measures more than 50 cm and less
than or equal to 55 cm in diameter.
Counsel for the importer maintains that Customs erred in
classifying the bicycle and accompanying bicycle bag separately.
Counsel further argues that the bicycle bag and bicycle are
properly classifiable as a "set" as defined in the nomenclature
with the bicycle providing the combination with its essential
character.
ISSUE:
(1) Whether the merchandise at issue is classifiable as a
"set" for tariff purposes?
(2) If not considered a "set," how are the items properly
classifiable?
LAW AND ANALYSIS:
The classification of goods under the HTSUSA is governed by
the General Rules of Interpretation (GRI's). GRI 1, HTSUSA,
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 . . . and according to the
following provisions". The "following provisions" include GRI
3(a) and GRI 3(b), HTSUSA, which refer to articles in sets "for
retail sale. . .". GRI 3(a) provides that the heading which most
specifically describes the goods is preferred and headings for
goods in a set are to be considered equally specific. GRI 3(b)
states that:
goods put up in sets for retail sale, which cannot be
classified by reference to 3(a), shall be classified as
if they consisted of the material or component which
gives them their essential character, as far as this
criterion is applicable.
The Explanatory Notes to GRI 3(b), which constitute the
official interpretation of the tariff at the international level,
sets out a three part test for "goods put up in sets for retail
sale." The three step definition states the following:
For the purposes of this Rule, the term 'goods put up
in sets for retail sale' shall be taken to mean goods
which:
(a) consist of at least two different articles
which are prima facie, classifiable in
different headings.
(b) consist of products or articles put up
together to meet a particular need or carry
out a specific activity; and
(c) are put up in a manner suitable for sale
directly to users without repacking (e.g., in
boxes or cases or on boards).
Since these three steps are listed in the conjunctive, all
three must be met to satisfy the requirements for a "set" in the
nomenclature. The bicycle is classifiable under subheading
8712.00.2000, HTSUSA, and the bicycle bag is classifiable under
subheading 8714.99.9000, HTSUSA. The goods are packaged together
for sale directly to users without any further repacking.
Therefore, parts (a) and (c) are clearly fulfilled by the bicycle
and bicycle bag combination.
The problem arises with part (b) of the definition. A
bicycle bag and bicycle do not fulfill the same particular need
or specific activity. These items are used for two distinct
activities, bicycling and transporting articles. Therefore, they
do not comprise a "set" within the meaning of GRI 3(b) and the
rules regarding "sets" become inapplicable.
The bicycle bag is not properly classified under Heading
8714, HTSUSA, which provides for parts and accessories of
bicycles. Explanatory Note (III)(C) to Section XVII, which
covers articles included in Chapter 87, states that "[p]arts and
accessories, even if identifiable as for the articles of this
Section, are excluded if they are covered more specifically by
another heading elsewhere in the Nomenclature." It is the
position of the Customs Service that the bicycle bag at issue is
more specifically provided for within Heading 4202, HTSUS.
To further support this position, Explanatory Note
(III)(C)(4) to Section XVII states that tool bags of leather or
of composition leather included under Heading 4202, HTSUSA, are
specifically excluded from articles in Section XVII. Since the
subject merchandise is a travel bag designed to hold, protect or
transport certain goods, it is similar to those items enumerated
in Heading 4202. The bike bag was originally classified in New
York Ruling Letter 826863, under subheading 4202.92.3030, HTSUSA,
as a travel, sports, and similar bag with an outer surface of
textile material: other: other: other. Subheading 4202.92,
HTSUSA, covers articles "with outer surface of plastic sheeting
or of textile materials". In the instant case, it is clear from
our examination of the bag that the article meets both the "outer
surface" and "plastic sheeting" terms of the subheading. The
outer surface of an article is that which is both visible and
tactile. Here, the visible and tactile surface of the bicycle
bag is not a textile but a plastic material. Furthermore,
Customs has previously determined that to fulfill the
requirements of plastic sheeting in Heading 4202, HTSUSA, the
plastic must be cellular in nature. Based on our examination of
the article at issue, we have determined that the plastic
component of this item is a cellular plastic. Therefore, the
bicycle bag has an "outer surface" of "plastic sheeting", and is
more properly classified in subheading 4202.92.4500.
HOLDING:
The sample merchandise is properly classifiable under two
separate provisions in the nomenclature since the articles do not
meet the requirements for a "set". The bicycle is classifiable
under subheading 8712.00.1020, HTSUSA, dutiable at a rate of 11
percent ad valorem. The bicycle bag is classifiable under
subheading 4202.92.4500, HTSUSA, which provides for travel,
sports and similar bags: other. Items classified under this
subheading are subject to a rate of duty of 20 percent ad
valorem.
New York Ruling Letter 826863, dated January 6, 1988, is hereby
modified accordingly.
Sincerely,
John Durant, Director
Commercial Rulings Division