CLA-2 RR:CR:GC 963328 JAS
Port Director of Customs
6747 Engle Road
Middleburg Heights, OH 44130-7939
RE: Protest 4196-99-100076; Hydraulic Disc Brakes for Bicycles
Dear Port Director:
This is our decision on Protest 4196-99-100076, filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of hydraulic disc brakes and front and rear hubs for bicycles. The entry under protest was liquidated on June 4, 1999, and this protest timely filed on August 19, 1999. In rendering this decision, consideration was given to additional information counsel for the protestant provided by telephone, and which he confirmed in a facsimile transmission and in a letter, both dated August 22, 2000.
FACTS:
The merchandise under protest is hydraulically operated front and rear disc brakes for bicycles, and compatible front and rear disc hubs. When the rider presses the brake lever on the handlebar, cylinders mounted on either side of the hub transmit pressure hydraulically, through calipers, to a rotor or disc mounted onto the hub. This slows the rotation of the hub and, hence, the bicycle. The hubs are of aluminum construction, but are not otherwise described.
The brakes were entered under a provision in heading 8714, HTSUS, for caliper and cantilever bicycle brakes, and the hubs under a provision in the same heading for aluminum alloy hubs with a hollow axle and lever-operated quick release mechanism. The brakes were reclassified in liquidation under a
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provision in heading 8714, HTSUS, for other brakes, on the basis that caliper or cantilever-type brakes for bicycles do not operate hydraulically. The hubs were reclassified under a provision in heading 8714, HTSUS, for other hubs, in the absence of information that they met the terms of the entered provision.
Counsel for the protestant maintains that the entered provision is correct on the basis that whether the braking force is transmitted to the calipers by hydraulics rather than by cable, the end result is the same, that is, the calipers are forced together to exert pressure on a single hub-mounted disc which stops the bicycle. He maintains that the provision for caliper brakes designates a commodity eo nomine, by name, and that such provisions will include subsequently created articles such as hydraulic disc brakes which reasonably fall within it. Counsel does not contest the reclassification of the front and rear disc hubs. Counsel does, however, assert an additional claim that in the absence of evidence that Customs extended the liquidation date of the entry at issue, under the authority of Section 159.11(a) of the Customs Regulations, the entry is deemed liquidated by operation of law at the rate of duty asserted by the importer at the time of the filing of the entry summary.
The HTSUS provisions under consideration are as follows:
8714 Parts and accessories of the vehicles of headings 8711 to 8713:
Hubs, other than coaster braking hubs and hub
brakes, and free-wheel sprocket wheels:
Hubs:
Aluminum alloy hubs with a hollow axle and
lever-operated quick release mechanism
Other:
8714.93.35 Other
8714.94 Brakes, including coaster braking hubs and hub brakes,
and parts thereof:
…caliper and cantilever bicycle brakes:
8714.94.90 Other
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ISSUE:
Whether hydraulically operated disc brakes are caliper and cantilever bicycle brakes for tariff purposes.
LAW AND ANALYSIS:
Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
Heading 8714 includes brakes of all kinds, including but not limited to cantilever brake and caliper brakes; it also includes hubs which are parts of wheels, all the foregoing which are parts and accessories of non-motorized cycles. The expressions cantilever and caliper, as types of bicycle brakes, are not defined either in the text of the HTSUS or in the Harmonized Commodity Description and Coding System Explanatory Notes for heading 8714. In such cases, tariff terms are construed in accordance with their common and commercial meanings, which are presumed to be the same. Where technical terms are involved, too great reliance should not be placed on general lexicons. Rather, more precise sources of information are often useful. Such is the case here. For example, the McGraw-Hill Encyclopedia of Science & Technology, 6th ed., Vol. 3 (1995), under the heading Brake, discusses disc brakes, a type of friction brake, and contains the following: “Structurally similar to disk clutches, disk brakes have long been used on hoisting and similar apparatus…The caliper disk brake consists of a rotating disk which can be gripped between two brake pads. A brake on a bicycle is an example. The automotive caliper disk brake is hydraulically operated, and the pads cover between one-sixth and one-ninth of the swept area of the disk.” More significantly, Sheldon Brown’s Bicycle Glossary, available on the Internet on January 28, 2000, at http://www.sheldonbrown.comgloss_ca-m.html, describes a caliper brake as consisting of a single assembly with movable arms, one on each side of the wheel rim and each attached to a brake shoe. These arms force the brake shoes toward the rim, slowing the bicycle. The same source describes a cantilever brake as similar in function except that it has a separate cantilever or arm on each side of the rim. In both types, the braking action is exerted against the wheel rim mechanically by the force generated through the cable by squeezing the handlebar-mounted lever.
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It his August 22, 2000 submission, counsel cites a glossary of terms contained in an excerpt from a magazine for bicycle enthusiasts which defines the term brake caliper as the part of a brake that contains the brake pads and squeezes them against the braking surface; the term hydraulic brake as a type of brake that uses fluid pressure to move the brake pads against the braking surface; and, the term hydraulic/cable-actuated disc brake as a hydraulic disc brake in which a standard brake lever and cable transmit the braking force from the hand to the hydraulic brake caliper. Lennard Zinn, Mountain Bike Performance Handbook (Wisconsin: MBI Publishing Company, 1998),
pp. 157, 158. Counsel maintains these describe the action of how the brake pads
engage the braking surface without specifically limiting the type of braking surface. In other words, the braking surface can be either the wheel rim or the disc of a bicycle. We have carefully considered the information counsel has provided. However, we believe the issue of common meaning here is to be governed by the judicial pronouncement in Marshall Field & Co., v. United States, 45 CCPA 72, C.A.D. 676 (1958), where the Court stated that where the lexicons and technical authorities are indefinite, common meaning may be determined on a case-by-case basis, with the Court setting the limits of the statutory language by a process of inclusion and exclusion. The tariff term under consideration is not “hydraulic disc brakes” or a variation of that term, but “caliper and cantilever bicycle brakes.” The definition counsel advances of the term hydraulic/cable-actuated disc brake most closely approximates by manner of operation the type of brake at issue. However, neither the term caliper nor the term cantilever appears in the definition. We remain of the opinion that there is no evidence that brakes which operate hydraulically to exert braking pressure on a hub-mounted disc are recognized in the bicycle trade as caliper or cantilever brakes.
As to counsel’s subsequently created article claim, the meaning of an eo nomine provision in a tariff act will not operate to exclude articles which are not known at the time the provision was enacted, but which come into being later. The subsequently created article, however, must possess an essential resemblance to the one(s) named in the statute in those particulars which the statute establishes as the criteria of classification. See Sears, Roebuck & Co. v. United States, 46 CCPA 79, C.A.D. 701 (1959), and related cases. In this case, it is not enough to argue, as counsel does, that the braking action both of caliper and cantilever bicycle brakes and hydraulic bicycle brakes is initiated mechanically by pressure applied to the brake lever on the handlebar. In our opinion, the salient characteristics of a caliper or cantilever bicycle brake include either a single assembly or multiple arms that permit(s) the rider to apply mechanical force directly through the cable to the brake shoes that contact the outside of the wheel rim. The brakes at issue, however, utilize hydraulics to multiply the applied mechanical force and direct it to a rotor or disc on the hub rather than the wheel rim. We conclude the disc brakes do not possess an essential resemblance to true caliper and cantilever bicycle brakes of subheading 8714.94.30, HTSUS.
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Hubs are the middle part of the wheel and consist of an axle which attaches to the fork ends, a shell to which the spokes attach, and bearings to connect the axle to the shell, permitting the shell to revolve around the axle. In rear hubs, the shell would also have a provision for attaching the rear sprockets. As to the front and rear disc hubs at issue here, the commercial invoice identifies them only as being of aluminum construction. However, there is neither argument that, nor independent evidence of whether that they have a hollow axle and lever-operated quick release mechanism.
We lack the authority to assume facts and arguments that are not presented and, therefore, not in the official record.
As to counsel’s deemed liquidation claim, Section 159.11(a), Customs Regulations, states in part that unless the port director extends the statutory period for liquidation, an entry not liquidated within 1 year from the date of the date of entry of the merchandise or the date of withdrawal of all merchandise covered by a warehouse entry, shall be deemed liquidated by operation of law at the rate of duty, value, quantity, and amount of duties asserted by the importer at the time of filing an entry summary for consumption or a withdrawal for consumption. Counsel maintains only that the importer is not aware of any extensions of the liquidation date for the entry under protest. In this regard, the concerned import specialist issued a request to the importer for additional information on April 14, 1998. Customs ACS records indicate that the entry under protest was extended on January 5, 1999, and that notice of liquidation was mailed to the importer on January 9, 1999, in accordance with Section 159.12(b), Customs Regulations. As the entry was liquidated on June 4, 1999, liquidation occurred within the period of the 1-year statutory period, as extended.
HOLDING:
Under the authority of GRI 1, the hydraulic disc brakes are provided for in heading 8714. They are classifiable in subheading 8714.94.90, HTSUS. The front and rear disc hubs are likewise provided for in heading 8714. They are classifiable in subheading 8714.93.35, HTSUS. The protest should be DENIED as to classification. The entry under protest liquidated within the 1-year statutory period for liquidation, as extended, in accordance with Section 159.12(a), Customs Regulations. The protest should be DENIED as to the liquidation claim.
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 the 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 the
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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, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division