CLA-2 CO:R:C:M 951813 LTO
Mr. Linc Alexander
Lexander Industries Inc.
P.O. Box 34244 Stn. "D"
Vancouver, B.C., Canada V6J 4N8
RE: Bodisail/Bodiscooter; 8716; EN 87.16; EN 95.06
Dear Mr. Alexander:
This is in response to your letter of March 24, 1992,
requesting the classification of the Bodisail/Bodiscooter under
the Harmonized Tariff Schedule of the United States (HTSUS).
Your letter was referred to this office for a response.
FACTS:
The article in question consists of the Bodisail and the
Bodiscooter. The sail is worn by the scooter operator by means
of a backpack attachment. While wearing the sail, the operator
stands on the scooter platform. The force of the wind on the
sail propels the scooter forward.
The sail is composed of an aluminum frame and a nylon sail.
It can be adjusted by a hand-controlled lever to catch the
desired wind. The scooter is a non-powered, wheeled apparatus
made of steel tube construction. It has two spoked wheels, a
platform where the operator stands and a steering column with
handlebars. The scooter does not have pedals or any other motive
power.
ISSUE:
Whether the Bodisail/Bodiscooter is classifiable as an
article or equipment for general physical exercise, gymnastics,
athletics, other sports or outdoor games under Heading 9506,
HTSUS.
n - 2 -
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
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:
8716 Trailers and semi-trailers; other vehicles,
not mechanically propelled . . .
* * * * * * * * * * * * *
9506 Articles and equipment for general physical
exercise, gymnastics, athletics, other
sports . . . or outdoor games, not specified
or included elsewhere in this chapter . . .
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) 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. EN
95.06, pg. 1593, states that Heading 9506, HTSUS, excludes
"sports vehicles (other than bobsleighs (bobsleds), toboggans and
the like), of Section XVII [emphasis in original]." Thus, if the
article in question is classifiable under Heading 8716, HTSUS, a
Section XVII heading, it cannot be classified under Heading 9506,
HTSUS.
Heading 8716, HTSUS, describes trailers, semi-trailers and
other vehicles, not mechanically propelled. EN 87.16, pg. 1439,
states that "[t]his heading covers a group of non-mechanically
propelled vehicles (other than those of the preceding headings)
equipped with one or more wheels and constructed for the
transport of goods or persons. It also includes non-mechanical
vehicles not fitted with wheels (e.g., sledges, special sleds
running on timber trackways) [emphasis in original]."
The Bodisail/Bodiscooter is a non-mechanically propelled
vehicle. However, the ENs make it clear that Heading 8716,
HTSUS, does not cover all non-mechanically propelled vehicles.
EN 87.16, pg. 1439, states that "[t]he vehicles of this heading
are designed to be towed by other vehicles (tractors, lorries,
trucks, motorcycles, bicycles, etc.), to be pushed or pulled by
hand or to be drawn by animals." Further, non-mechanically
propelled winter sports equipment, such as toboggans, bobsleds, n- 3 -
and the like, are excluded from Heading 8716, HTSUS. See EN
87.16, pg. 1441; EN 95.06, pg. 1593.
The article in question is propelled by the wind, rather
than by hand, animal or other vehicle. It is our opinion that
the Bodisail/Bodiscooter is not the type of vehicle contemplated
by Heading 8716, HTSUS. Rather, it is similar to the non-
mechanically propelled sailboard which is classifiable under
Heading 9506 (subheading 9506.21.40), HTSUS. Sailboards are
small, flat sailboats designed for one or more passengers, which,
like the article in question, are propelled by the wind. Thus,
the Bodisail/Bodiscooter is classifiable as an article for
general physical exercise, athletics or outdoor games.
HOLDING:
The Bodisail/Bodiscooter is classifiable under subheading
9506.99.60, HTSUS, which provides for "[a]rticles and equipment
for general physical exercise, gymnastics, athletics, other
sports (including table tennis) or outdoor games, not specified
or included elsewhere in this chapter . . . [o]ther . . . [o]ther
. . . [o]ther." The corresponding rate of duty for articles of
this subheading is 4.64% ad valorem, or 2.7% ad valorem upon
compliance with the regulations for the United States-Canada Free
Trade Agreement.
Sincerely,
John Durant, Director