CLA-2 OT:RR:CTF:TCM H180103 EGJ
Paul Vroman
DHL Global Forwarding
2660 20th Street
Port Huron, MI 48060
RE: Revocation of NY N166197, NY N066722 and NY N016953: Classification of Child Bicycle Seats
Dear Mr. Vroman:
This is in reference to New York Ruling Letter (NY) N166197, dated June 6, 2011, issued to you concerning the tariff classification of a child bicycle seat designed for attachment to an adult bicycle under the Harmonized Tariff Schedule of the United States (HTSUS). In that ruling, U.S. Customs and Border Protection (CBP) classified the subject article in heading 9401, HTSUS, which provides for seats. We have reviewed NY N166197 and find it to be in error. For the reasons set forth below, we hereby revoke NY N166197 and two other rulings with substantially similar merchandise: NY N066722, dated July 16, 2009 and NY N016953, dated September 21, 2007.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as
amended by section 623 of Title VI, notice proposing to revoke NY N166197, NY N066722 and NY N016953 was published on February 5, 2014, in Volume 48, Number 5, of
the Customs Bulletin. Two comments were received in opposition to the Notice, and
are addressed in this decision.
FACTS:
In NY N166197, CBP described the subject merchandise as the Britax Jockey bike seat, which is a bicycle-mounted child seat. The seat is positioned behind the rider’s saddle. The seat is composed of a molded plastic shell with a reversible cover, and has an attached safety harness. Two metal bars, attached to the seat, extend downwards to connect with the bicycle’s frame via a steel bracket. This seat features an extra large spoke cover to prevent the child’s legs from getting caught within the wheel spokes, an adjustable back rest to change the seat position from upright to reclined, and a height adjustable headrest that can move up and down depending upon the child’s height. A picture of the Jockey Bike seat is provided below:
ISSUE:
Is the child bike seat, designed for attachment to an adult bicycle, classified under heading 8714, HTSUS, as an accessory to a bicycle, or under heading 9401, HTSUS, as a seat?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The relevant HTSUS provisions are:
8712 Bicycles and other cycles (including delivery tricycles), not motorized …
* * *
8714 Parts and accessories of vehicles of headings 8711 to 8713 …
* * *
9401 Seats (other than those of heading 9402), whether or not convertible into beds, and parts
thereof …
* * *
Note 1(h) to Chapter 94 states that:
1. This chapter does not cover:
(h) Articles of heading 8714 …
* * *
According to GRI 1, we must first examine section notes, chapter notes and the text of the headings. Note 1(h) to Chapter 94 states that articles of heading 8714, HTSUS, are excluded from classification in Chapter 94. Thus, if the child bike seats are classifiable as parts or accessories of bicycles in heading 8714, HTSUS, they cannot be classified as seats in heading 9401, HTSUS.
Heading 8714, HTSUS, provides, inter alia, for parts and accessories of bicycles. In The Pomeroy Collection Ltd. v. United States, 783 F.Supp. 2d 1257, 1260-1261 (Fed. Cir. 2011), the U.S. Court of Appeals for the Federal Circuit (CAFC) explains the courts’ two tests for “parts” of an article under the HTSUS. The CAFC states, in pertinent part, that:
The appellate court has adopted two tests for determining whether merchandise may be classified as a part of an article. The first is when the article of which the merchandise in question is claimed to be a part "could not function as such article" without the claimed part. United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322, 324, Treas. Dec. 46851, T.D. 46851 (1933) (emphasis and citations omitted); see also Bauerhin Techs. Ltd. P'ship v. United States, 110 F.3d 774, 778 (Fed. Cir. 1997) (relying on this "oft-quoted passage" of Willoughby). Thus, for example, a lens that allows a camera to take colored photos is properly a part of such cameras -- without such lens, "cameras could not perform one of their proper functions - the taking of colored pictures," Willoughby, 21 C.C.P.A. at 326-27.
The second test by which a piece of merchandise may qualify as a part of another article is if, when imported, the claimed part is "dedicated solely for use" in such article and, "when applied to that use," the claimed part meets the Willoughby test. United States v. Pompeo, 43 C.C.P.A. 9, 14 (1955). The example here is a supercharger that may be installed in a car engine -- although both the car engine and the supercharger are complete in themselves, the supercharger is dedicated solely for supercharging the car engine, and, when applied to that use -- i.e., when the article being considered is not just a car engine, but a supercharged car engine -- the supercharged car engine cannot function without the super charger, and so the Willoughby test is met. See id. at 13-14. Id.
As stated above, the Willoughby test for parts of an article is whether the article could still function as such article without the part. 21 C.C.P.A. at 324. Thus, we must determine if the adult bicycle can still function as an adult bicycle without the child bike seat. We find that an adult can still ride the bicycle without the child bike seat. As such, the child bike seat fails the Willoughby test for parts. Id.
Next, the Pompeo test for parts states that the part must be dedicated solely for use with the article at importation. 43 C.C.P.A. at 14. Once the imported part is attached to the article, the part must then also satisfy the Willougby test for parts. Id. At importation, the child bike seat is equipped with two metal bars which attach to the adult bicycle’s frame. The child bike seat also includes spoke covers which prevent the child’s legs from being struck by spinning spokes. As such, we find that the child bike seat is dedicated solely for use with an adult bicycle. However, the second prong of the Pompeo test is that, once installed, the adult bicycle must be unable to function as an adult bicycle without the child bike seat. Pompeo, 43 C.C.P.A. at 14 citing Willoughby, 21 C.C.P.A. at 324. As stated above, an adult bicycle can still function as an adult bicycle without the child bike seat. As such, the child bike seat fails both of the courts’ tests for parts of articles and cannot be classified as a part of an adult bicycle.
Next, we must determine if the child bike seat is classifiable as an accessory to an adult bicycle under heading 8714, HTSUS. In Rollerblade, Inc. v. United States, the U.S. Court of International Trade (CIT) sets forth the definition for an accessory to an article. 24 C.I.T. 812 (2000), aff’d by Rollerblade, Inc. v. United States, 282 F.3d 1349 (2002). The CIT cites with approval CBP Headquarters Ruling Letter (HQ) 958924, dated June 20, 1996, which states, in pertinent part, that:
We, however, have repeatedly noted that an accessory is, in addition to being an article related to a primary article, is [sic in original] used solely or principally with that article. We have also noted that an accessory is not necessary to enable the goods with which they are used to fulfill their intended function. They are of secondary importance, not essential of themselves. They, however, must contribute to the effectiveness of the principal article (e.g., facilitate the use or handling of the principal article, widen the range of its uses, or improve its operation). We have also noted that Webster's Dictionary defines an accessory as an object or device that is not essential in itself but adds to the beauty, convenience, or effectiveness of something else. Id. at 816 citing Webster's New World Dictionary of the American Language 4 (2d Concise Ed. 1978).
The CIT also agrees with CBP’s assertion that an "'‘[a]ccessory' is not defined as something that is merely intended to be used at the same time as something else; accessories must serve a purpose subordinate to, but also in direct relationship to the thing they 'accessorize.'" Id. at 816-817 citing Def.'s Mot. Summ. J. at 5-6 (emphasis in original). As such, an accessory must have a direct relationship to the article it accessorizes. Moreover, the accessory must serve a purpose subordinate to the article’s purpose. Finally, while an accessory is not essential to the article, it should add to the beauty, convenience or effectiveness of the article.
Examining the child bike seat, we find that it has a direct relationship to the adult bicycle because it attaches directly to the adult bicycle. Moreover, its function of providing a seat for a child is subordinate to the adult bicycle’s function of enabling an adult to ride the bicycle. Finally, the child bike seat increases the effectiveness of the adult bicycle. Rather than providing transportation for one adult rider, the child bike seat enables the adult bicycle to transport both one adult and one child. Transporting two people is more effective than transporting one person. As such, we find that the child bike seat is classifiable as an accessory to a bicycle under heading 8714, HTSUS.
Since the child bike seat is classified in heading 8714, HTSUS, Note 1(h) to Chapter 94 excludes it from classification as a seat in heading 9401, HTSUS. For all of the aforementioned reasons, we find that the subject child bike seat is classified as an accessory to an adult bicycle under heading 8714, HTSUS.
As we now turn to the comments submitted in response to the proposed revocation, we first note that both commenters failed to address Note 1(h) to Chapter 94, which is the basis for our classification decision. We also note that both commenters made the same arguments, which hinged upon specificity and the ENs.
First, the commenters argued that the child seat should be classified in heading 9401, HTSUS, by application of Additional U.S. Rule of Interpretation 1(c) (AUSR 1(c)). AUSR 1(c) provides as follows:
1. In the absence of special language or context which otherwise requires –
(c) a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for “parts” or “parts and accessories” shall not prevail over a specific provision for such part or accessory…
Applying AUSR 1(c), the commenters argued that heading 9401, HTSUS, is a specific provision for seats. Therefore, heading 9401, HTSUS, should prevail over heading 8714, HTSUS, which provides for parts and accessories. However, we note that the introduction to AUSR 1(c) states that AUSR 1(c) only applies “in the absence of special language or context.” Note 1(h) to Chapter 94 is statutory language which precludes parts and accessories of bicycles from classification in Chapter 94. As such, we find that there is no need to apply AUSR 1(c). The language of the HTSUS dictates that parts and accessories of bicycles cannot be classified in heading 9401, HTSUS.
Next, the commenters asserted that the Explanatory Notes direct us to classify child bike seats in heading 9401, HTSUS. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN(III)(C)(12) to Section XVII (which includes Chapters 86-89) provides, in pertinent part, that:
Parts 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, e.g.:
(12) Vehicle seats of heading 94.01…
* * *
EN 94.01(c) provides, in pertinent part, that:
The heading does not, however, include:
(c) Articles of heading 87.14 (e.g., saddles) …
* * *
Subheading EN 9401.80 provides that:
This heading also covers safety seats suitable for use for the carriage of infants and toddlers in motor vehicles or other means of transport. They are removable and are attached to the vehicle’s seats by means of the seat belt and a tether strap.
* * *
One of the commenters cited to EN(III)(C)(12) to Section XVII (which includes Chapters 86-89), and stated that parts and accessories of heading 8714, HTSUS, are more specifically provided for as seats of heading 9401, HTSUS. As such, EN(III)(C)(12) to Section XVII excludes them from classification in Section XVII.
First, we note that the ENs are merely informative, and cannot prevail over the statutory language of the HTSUS. We agree that EN(III)(C)(12) indicates that certain types of vehicle seats should be excluded from classification in Section XVII. We also note that the ENs to subheading 9401.80 describe the types of vehicle seats which should be classified in that subheading. Namely, subheading EN 9401.80 refers to child safety seats for motor vehicles (emphasis added). Further, EN 9401.80 describes the seats as the type that are “attached to the vehicle’s seats by means of the seat belt and a tether strap.”
The instant child bike seats are not safety seats for motor vehicles. They do not attach to the bicycle by means of a seat belt and a tether strap. Rather, they attach to the bicycle’s frame using a metal rack. Finally, we note that EN 94.01(c) reiterates the language of Note 1(h) to Chapter 94 by stating that articles of heading 8714 are excluded from classification in heading 9401. For all of the aforementioned reasons, we disagree that the ENs direct us to classify the child bike seat in heading 9401, HTSUS.
Finally, one commenter argued that we should apply the same analysis applied in Headquarters Ruling Letter (HQ) H237640, dated July 17, 2013, to the instant child bike seat. In HQ H237640, we determined that protective bicycle rim tape could be classified in either heading 5906, HTSUS, as a rubberized textile fabric, or in heading 8714, HTSUS, as a bicycle accessory.
Applying GRI 1, we noted that no section or chapter notes excluded the classification of these goods from either of the two headings. As heading 8714, HTSUS, provides for accessories, we turned to AUSR 1(c) for direction on how to classify the subject merchandise. As the terms of heading 5906, HTSUS, describe the merchandise more specifically, the bicycle rim tape was properly classified under heading 5906, HTSUS, by application of AUSR 1(c).
Conversely, Chapter Note 1(h) to Chapter 94 specifically excludes goods of heading 8714, HTSUS, from being classified in heading 9401, HTSUS. As such, we cannot apply AUSR 1(c) to the instant merchandise. Although the tariff term “seat” is more specific than the term “accessories to bicycles,” GRI 1 dictates that we must first classify the goods by application of the relevant section and chapter notes. Thus, we are not persuaded by the commenter’s request to apply the analysis set forth in HQ H237640 to the instant merchandise.
HOLDING:
By application of GRI 1 (Note 1(h) to Chapter 94), the child bicycle seat designed for attachment to an adult bicycle is classified in heading 8714, HTSUS. It is specifically classified under subheading 8714.99.80, HTSUS, which provides for “Parts and accessories of vehicles of headings 8711 to 8713: Other: Other: Other…” The 2014 column one, general rate of duty is ten percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at www.usits.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N166197, dated June 6, 2011, NY N066722, dated July 16, 2009 and NY N016953, dated September 21, 2007, are hereby revoked.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division