CLA-2 CO:R:C:M 951864 AJS
Paul S. Anderson, Esq.
Sonnenberg, Anderson, O'Donnell & Rodriguez
Attorneys & Counsellors at Law
200 South Wacker Drive
33rd Floor
Chicago, Illinois 60606
RE: Reconsideration of HQ 950319; Multi-track hybrid style
bicycle; Commercial availability of tires exceeding 4.13 cm for
700c rims; Subheading 8712.00.25; 19 CFR 177.9(d)(1) and (d)(3).
Dear Mr. Anderson:
This is in reference to your letter of July 28, 1992,
relating to HQ 950319 (December 11, 1991), concerning the tariff
classification of bicycles, which was issued to your firm as
counsel for Trek Bicycle Corporation (Trek). Since the issuance
of this ruling we have been monitoring the importation of hybrid
style bicycles. As discussed at our meeting on June 24, 1992, we
have received information which has caused us to review the
procedure set forth in HQ 950319, for determining the proper
classification of these types of bicycles. After careful
consideration of this matter, we have determined that HQ 950319
must be modified.
FACTS:
In HQ 950319, we discussed the tariff classification of the
Trek "Multi-Track" hybrid style bicycle, and established the
proper procedure for determining whether a bicycle is "not
designed for use with tires having a cross-sectional diameter
exceeding 4.13 cm" as provided for within subheading 8712.00.25,
Harmonized Tariff Schedule of the United States (HTSUS).
ISSUE:
Whether tires with a cross-sectional diameter exceeding 4.13
cm are commercially available for 700c rims.
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What is the proper tariff classification of the "Multi-
Track" bicycle.
LAW AND ANALYSIS:
Question one of the procedure set forth in HQ 950319 asks
"[d]oes 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 to this question 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. Based upon information
you provided, we found that the "Multi-Track" possessed a 700c
rim for which there were no commercially available tires with a
cross-sectional diameter exceeding 4.13 cm. This finding was
also supported by information we received from the Customs
National Import Specialist for bicycles and field import
specialists.
Customs subsequently received information which establishes
that our conclusion regarding the commercial availability of
tires with a cross-sectional diameter exceeding 4.13 cm for the
700c rim is no longer accurate. Specifically, we received
independent catalog information from the Bicycle Manufacturers
Association of America (BMA) which states that tires exceeding
4.13 cm for a 700c rim are commercially available. In addition,
your submission of July 28, 1992, states that two of these
catalog tires do in fact exceed 4.13 cm. Furthermore, the
Customs National Import Specialist received a sample of a 700c
rim with a tire exceeding 4.13 cm and ascertained that they are
readily available in the U.S. Accordingly, we have determined
that the use of question one to determine the tariff classifi-
cation of the "Multi-Track" is no longer proper. Rather, the
other two questions from HQ 950319 must be consulted to determine
the proper classification of the "Multi-Track".
In our meeting with representatives of Trek on June 24,
1992, you also demonstrated the unreliability of the claimed tire
cross-sectional diameter in the bicycle tire trade. At this
meeting, various inflated tire samples were inspected and
measured. These samples all were claimed to measure greater than
4.13 cm, but upon inspection all measured less than 4.13 cm.
However, you indicated in your submission that two of these tires
did exceed 4.13 cm upon further testing. In addition, you
indicated that a tremendous element of confusion exists in the
bicycle tire trade relative to the manner in which tire sizes are
determined, labeled and presented. Based on these circumstances,
we find that the use of rim size and corresponding commercial
tire availability are no longer a satisfactory manner for
determining the classification of bicycles. Therefore, Question
one of HQ 950319 is no longer applicable.
-3-
Question two asks "[d]oes a clearance of greater than 1.6 mm
[.06304 inches] exist between the bicycle tire and fork or any
frame member when the 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) ?" Exhibit C from your submission of August
30, 1991, which resulted in the decision in HQ 950319, indicates
that clearances of .178 inches exist between the front fork and a
4.13 cm tire, and .286 inches between each side bar of the seat
stay and a 4.13 cm tire. This information establishes that a
clearance of greater than .06304 inches does exist for the
"Multi-Track". Accordingly, the answer to question two is "yes".
At our meeting and in your submission it is argued that
certain manufacturing tolerances should also be taken into
consideration in the application of Question two. In our view,
these tolerances would expand the objective clearance standard
that Customs borrowed from the CPSC, and which was also found to
be reasonable by a Federal Circuit Court of Appeals in Forester v
CPSC, 559 F.2d 774 (1977). You argue for tolerances of .71 cm,
and other importers have argued for tolerances of .635 cm. To
chose one of these figures or another figure, would require
Customs to expand an objectively arrived at standard. Noting
your concern with the 1.6 mm clearance, we repeat our suggestion
that you discuss this matter with the CPSC. If they are willing
to alter this clearance, we would be amenable to reexamining the
clearance issue for Customs purposes. Otherwise, we continue to
adhere to the present application of Question two.
As stated in HQ 950319, when the answer to question two is
"yes", then question three must be addressed. This question asks
"[w]ould any substantial work involving welding or other frame
adjustments be necessary to accommodate a tire with a width
greater than 4.13 cm ? (Such work could involve moving studs for
caliper brakes, etc.)." In your submission, you stated that the
studs for caliper brakes would be positioned too high for a 26
inch rim (i.e., a rim for which you stated tires with a width
exceeding 4.13 cm are available). However, as exhibit C
indicates, the "Multi-Track" would have a clearance of greater
than .06304 inches if it is used with a 4.13 cm tire. For the
position of the studs to be determinative, they need to be
positioned so that the brakes could not function with any type of
rim which could accept a tire exceeding 4.13 cm. This does not
appear to be the case for the "Multi-Track." Therefore, the
answer to question three is "no".
As stated in HQ 950319, a "no" answer to question three
requires a bicycle to be classified within subheading 8712.00.35,
HTSUS, based on the fact that the use of a tire exceeding 4.13 cm
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would not be inconsistent with the safe and proper operation of
the bicycle. Accordingly, the "Multi-Track" hybrid style bicycle
is classifiable within subheading 8712.00.35, HTSUS, which
provides for "other" bicycles having both wheels exceeding 63.5
cm in diameter.
This letter should be considered a modification of HQ 950319
under 19 CFR 177.9(d)(1). Generally, a ruling letter modifying
or revoking an earlier letter will be effective on the date it is
issued. 19 CFR 177.9(d)(3). HQ 950319 was partially based on
your statements of fact regarding the commercial availability of
tires exceeding 4.13 cm for 700c rims. At that time, your
statements were also supported by the findings of Customs
officers. As discussed previously, however, we have received
information which indicates that these statements are no longer
accurate. Because of these circumstances, we do not view this
case to be one which warrants action other than the general
application of the above regulation. Therefore, this letter is
effective on the date of issuance.
HOLDING:
The "Multi-Track" hybrid style bicycle is classifiable
within subheading 8712.00.35, HTSUS, which provides for "other"
bicycles having both wheels exceeding 63.5 cm in diameter. HQ
950319 is modified accordingly.
Sincerely,
Harvey B. Fox
Director
Office of Regulations & Rulings