CLA-2 CO:R:C:M 950319 AJS
Steven P. Sonnenberg, Esq.
Sonnenberg, Anderson, O'Donnell & Rodriguez
Attorneys & Counsellors at Law
200 West Adams Street
Suite 2625
Chicago, Illinois 60606
RE: Multi-track hybrid bicycle; HQ 087735; Subheading 8712.00.35;
16 CFR 1512.11(b); 15 U.S.C. 1263; Forester v. Consumer Products
Safety Commission; International Spring Mfg. Co. v. U.S.
Dear Mr. Sonnenberg:
This is in reply to your letter of August 30, 1991,
regarding HQ 087735 (August 27, 1990), concerning the tariff
classification of bicycles.
FACTS:
The merchandise at issue are various models of the "Multi-
Track" hybrid style bicycle. They possess 700c rims, have wheels
exceeding 65 cm in diameter, and weigh less than 16.3 kilograms
complete without accessories. Such bicycles would either be
classifiable within subheading 8712.00.25, Harmonized Tariff
Schedule of the United States (HTSUS), which provides for
"[b]icycles having both wheels exceeding 63.5 cm in diameter:
[i]f weighing less than 16.3 kg complete without accessories and
not designed for use with tires having a cross-sectional diameter
exceeding 4.13 cm."; or within subheading 8712.00.35, HTSUS,
which provides for "other" bicycles having both wheels exceeding
63.5 cm in diameter.
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ISSUE:
What is the proper procedure for determining whether a
bicycle is "not designed for use with tires having a cross-
sectional diameter exceeding 4.13 cm."
LAW AND ANALYSIS:
In HQ 087735 (August 27, 1990), Customs interpreted the
predecessor provision of subheading 8712.00.25 (i.e.,
8712.00.20). We stated that for a bicycle to be classified
within this provision, the importer must demonstrate that there
are important design features in the bicycle that preclude the
use of tires exceeding 1.625 inches (currently 4.13 cm).
Furthermore, it is not enough to prove that a bicycle was
designed with smaller tires in mind. The use of tires exceeding
4.13 cm must be inconsistent with the safe and proper operation
of the bicycle.
Your letter requests that Customs establish a proper
procedure for determining whether a bicycle exhibits important
design features that preclude the safe and proper use of tires
having a cross-sectional diameter exceeding 4.13 cm. After a
careful review of the matter, we agree that such a procedure
would be beneficial to Customs and the importing community.
Accordingly, we have developed the following procedure which is
based on a series of questions which should be asked in the
following order. The answer to these questions will form the
basis for a determination as to the proper classification of
these types of bicycles.
1. Does the bicycle, upon importation, have rims for
which there are no commercially available tires with
a width greater than 4.13 cm ?
If the answer is "yes", then the bicycle is classifiable
within subheading 8712.00.25, HTSUS, based on the fact that the
entire wheel would have to be changed in order to use a tire
exceeding 4.13 cm. The subject "Multi-Track" hybrids possess a
700c rim, for which there are no commercially available tires
with a width exceeding 4.13 cm. Accordingly, the "Multi-Track"
hybrids are properly classifiable within subheading 8712.00.25,
HTSUS.
If the answer to the above question had been "no", then the
following question should be addressed:
2. Does a clearance of greater than 1.6 mm exist between
the bicycle tire and fork or any frame member when the
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wheel assembly is rotated to any position ? For example,
Is the width of the front fork (measured horizontally
where the widest part of a tire would be located) greater
than 4.45 cm (this represents 4.13 cm plus 1.6 mm on each
side of the tire) ?
If the answer is "no", then the bicycle is classifiable
within subheading 8712.00.25, HTSUS.
This 1.6 mm clearance standard is based on the regulations
of the Consumer Products Safety Commission (CPSC). These
regulations state that "[t]he wheel assembly [of a bicycle]
shall be aligned such that no less than 1.6 mm (1/16 in.)
clearance exists between the tire and fork or any frame member
when the wheel assembly is rotated to any position." 16 CFR
1512.11 (b)(1991). Bicycles which do not meet this standard are
classified as banned hazardous substances under the Federal
Hazardous Substance Act and prohibited from introduction or
delivery into interstate commerce. 15 U.S.C. 1263 (1970). This
standard has been found to be reasonable and upheld in court.
Forester v. Consumer Products Safety Commission, 559 F.2d 774,
796 (1977). It is well settled, however, that this type of
standard is not binding for tariff purposes. International
Spring Mfg. Co. v. United States, 496 F. Supp. 279 (1980).
Nevertheless, we do find it helpful for determining whether a
bicycle possesses important design features that preclude the use
of tires exceeding 4.13 cm.
If the answer to Question 2 had been "yes", then the
following question should be addressed:
3. Would any substantial work involving welding or other
frame adjustment be necessary to accommodate a tire
with a width greater than 4.13 cm ? (Such work could
involve moving studs for caliper brakes, etc.)
If the answer is "yes", then the bicycle is classifiable
within subheading 8712.00.25, HTSUS. Mere certification by the
importer or manufacturer is not sufficient for this above
determination. Independent engineering or laboratory reports
should be consulted.
If the answer is "no", then the bicycle is classifiable
within subheading 8712.00.35, HTSUS, based on the fact that the
use of tires exceeding 4.13 cm would not be inconsistent with the
safe and proper operation of the bicycle.
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HOLDING:
The "Multi-Track" hybrid bicycle models are classifiable
within subheading 8712.00.25, HTSUS, which provides for
"[b]icycles having both wheels exceeding 63.5 cm in diameter:
[i]f weighing less than 16.3 kg complete without accesories and
not designed for use with tires having a cross-sectional diameter
exceeding 4.13 cm", dutiable at the rate of 5.5 percent ad
valorem.
Sincerely,
Harvey B. Fox
Director
Office of Regulations & Rulings