CLA-2 OT:RR:TCF: TCM: H220539 LOR
Port Director
New York/New Jersey Area
1100 Raymond Boulevard
Newark, NJ 07102
ATTN: David Renna, Senior Import Specialist
RE: Application for Further Review of Protest No. 4601-12-100759; Tariff
Classification of the Bat-Caddy®, Electric Golf Caddy
Dear Port Director:
This is our decision on Application and Further Review (“AFR”) of Protest No. 4601-12-100759 filed on behalf of SpaCom, LLC (“protestant”), against your classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of a motorized caddy for the transportation of golf bags filled with clubs. Although samples were not provided, U.S. Customs and Border Protection (“CBP”) viewed the articles that are subject to the protest on the protestant’s website: http://batcaddy.com.
In preparing this ruling, consideration was given to the substance of email correspondence with protestant’s counsel, dated September 10, 2014, September 30, 2014, and January 7, 2015. Counsel was unable to participate in telephone conferences scheduled for November 14, 2014, December 18, 2014, and January 7, 2014. However, inasmuch as the administrative record contains a comprehensive description of the facts at issue along with arguments advanced by counsel, we are issuing our decision.
FACTS:
The merchandise at issue is the Bat-Caddy® Electric Golf Caddy (Models X2, X3, X3R and X4R). The Bat-Caddy® is a motorized, self-propelled electric golf cart, designed to carry golf bags filled with golf clubs. It can be remotely controlled or manually controlled, depending on the model. The Bat-Caddy® incorporates a metal frame with a strap that is designed to secure a golf bag filled with golf clubs. It possesses an electrical propulsion and braking system and an electronic control unit. The Bat-Caddy® has an aluminum shaft, topped with a handle for steering; three-wheels mounted to a triangular-shaped chassis; a motor; a battery (SLA or Lithium); and a drive chain. The Bat-Caddy® has rear wheel drive, direct drive, and dual independent transmission gear ratios.
As can be seen in the images below, the X2 model has four wheels: two small wheels in the front and two larger wheels in the back. The remaining models have three wheels: one small wheel in the front and two larger wheels in the back. The X3R and X4R models may be configured for remote control usage via a wireless, hand-held unit. The Bat-Caddy® is foldable for storage and comes with a variety of accessories, including a seat. The seat is not to be used while the Bat-Caddy® is in motion.
Bat-Caddy® X2 Bat-Caddy® X3
Bat-Caddy® X3R Bat-Caddy® X4R
Partially Folded w/Accessories
Protestant entered the merchandise under subheading 8716.80.5090, HTSUS, “Trailers and semi trailers; other vehicles, not mechanically propelled; Other.” U.S. Customs and Border Protection (“CBP”) personnel at the port of New York/Newark rate advanced the entry and changed the classification to 8704.90.0000, HTSUS, which provides for “Motor Vehicles for the transport of goods: Other”. The entry was liquidated under subheading 8704.90.0000, HTSUS, on November 14, 2011.
In Protest No. 4601-12-100759, protestant claims the Bat-Caddy® should be classified under heading 8479, HTSUS. In the alternative, Protestant claims that the Bat-Caddy® should be classified under heading 9506, HTSUS.
ISSUE:
Whether the Bat-Caddy® is classifiable under heading 8479 as a machine, under heading 8704 as a motor vehicle for the transport of goods; or under heading 9506 as an article or equipment for outdoor games.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further review of Protest 4601-12-100759 is properly accorded to Protestant pursuant to title 19 C.F.R. § 174.24(a) in light of Protestant’s allegation that CBP’s classification of the article is inconsistent with certain CBP rulings concerning similar merchandise, including Headquarters Ruling Letter (“HQ”) HQ H053679, dated August 11, 2010 and HQ H177796, dated May 8, 2014.
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined 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.
The provisions under consideration are as follows:
8479 Machines and mechanical appliances having individual functions,
not specified or included elsewhere in this chapter; parts thereof:
8704 Motor vehicles for the transport of goods:
9506 Articles and equipment for gymnastics, athletics, other sports...or
outdoor games, not specified or included elsewhere in this chapter; swimming pools...parts and accessories thereof...
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
EN 87.04 provides, in pertinent part:
This heading covers in particular:
Ordinary lorries (trucks) and vans (flat, tarpaulin-covered, closed, etc.); delivery trucks and vans of all kinds, removal vans; lorries (trucks) with automatic discharging devices (tipping lorries (trucks), etc.); tankers (whether or not fitted with pumps); refrigerated or insulated lorries (trucks); multi-floored lorries (trucks) for the transport of acid in carboys, cylinders of butane, etc.; drop frame heavy-duty lorries (trucks) with loading ramps for the transport of tanks, lifting or excavating machinery, electrical transformers, etc.; lorries (trucks) specially constructed for the transport of fresh concrete, other than concrete-mixer lorries (trucks) of heading 87.05; refuse collectors whether or not fitted with loading, compressing, damping, etc., devices.
The heading also covers lightweight three-wheeled vehicles, such as:
those fitted with motorcycle engine and wheels, etc. which, by virtue of their mechanical structure, possess the characteristics of conventional motor cars, that is motor car type steering system or both reverse gear and differential;
those mounted on a T-shaped chassis, whose two rear wheels are independently driven by separate battery-powered electric motors. These vehicles are normally operated by means of a single central control stick with which the driver can start, accelerate, brake, stop and reverse the vehicle, as well as steer it to the right or to the left by applying a differential torque to the drive wheels or by turning the front wheel.
* * * * *
Protestant claims that the term “motor vehicle” as specifically used within heading 8704, HTSUS, is meant to include only “vehicles” of an automotive nature (i.e., trucks, vans, dumpers, shuttle cars, road-rail lorries, etc.). To support this proposition, protestant relies upon the definition of “motor vehicle” set forth by the U.S. Department of Transportation, Federal Motor Carrier Safety Administration (“FMCSA”) set forth in the Federal Motor Carrier Safety Regulations at 49 C.F.R. § 383.5 to support its position that the Bat-Caddy® is not a motor vehicle.
Title 49 U.S.C. Chapter 301 grants the National Highway Transportation Safety Administration (“NHTSA”) regulatory authority over "motor vehicles. The term “motor vehicle” is defined at 49 U.S.C. § 30102(a)(6) as follows:
(6) “motor vehicle” means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.
(49 U.S.C. § 30102(a)(6)).
On June 17, 1998, NHTSA considered whether golf cars and similar-sized, 4 wheel vehicles used to make short trips for shopping, social and recreational purposes primarily within retirement or other planned communities within golf courses could be considered motor vehicles. See 63 FR 33913, dated June 17, 1998: Federal Motor Vehicle Safety Standards. The final rule applies only to 4-wheeled motor vehicles, other than trucks, with a top speed of 20 to 25 miles per hour. The final rule enabled NHTSA to exclude virtually all golf carts from the standard.
Initially, the FMCSA and the NHTSA safety standards, which respectively apply to commercial vehicles for the transport of people, do not apply in this case as non-tariff statutes and regulations are not dispositive for purposes of classification. See Marubeni America Corp. v. United States, 821 F.Supp. 1521 (1993); see also HQ 961512, dated April 24, 1998, and HQ H021296, dated April 30, 2009. Moreover, the Bat Caddy® is not a vehicle for the use as a commercial carrier and it is not for the transport of people.
CBP has long held that similar three-wheeled, motorized vehicles were classified in heading 8704, HTSUS. For example, in HQ 085917, CBP found that the “Powakaddy”, a three-wheeled, motorized golf bag used to transport a bagged set of golf clubs around a golf course, was classified under heading 8704, HTSUS. CBP noted:
Section XVII, heading 8704, HTSUSA, provides for motor vehicles for the transport of goods. The definition of “vehicle” is “any device or contrivance for carrying or conveying persons or objects, esp. over land or in space, as automobiles, bicycles, sleds, spacecraft, etc.” See Webster’s New World Dictionary, Third College Edition, page 1479. Clearly, the Powakaddy is a device for carrying objects over land, i.e., carrying golf clubs over a golf course.”
Likewise, in HQ 958326, dated December 20, 1995, CBP affirmed NY 811825, dated July 13, 1995, where the “Lectronic Kaddy” was classified under heading 8704, HTSUS. In so doing, CBP declined to restrict the scope of heading 8704, HTSUS, to “motor vehicles” that must be used on roads or highways, noting that, “…[a] standard dictionary defines the term motor vehicle as an automotive vehicle not operated on rails; esp. one with rubber tires for use on highways. Webster’s New Collegiate Dictionary (1977) at p. 752.” This approach to the scope of heading 8704, HTSUS, was continued in HQ 962690, dated December 20, 1995, where CBP classified the three components of the “Powakaddy Classic” together under heading 8704, HTSUS, by application of GRI 2(a). Counsel for the protestant in HQ 962690 argued that the finished “Powakaddy Classic” could not “carry anything”, and thus fell outside the scope of heading 8704, HTSUS. CBP responded as follows:
[T]he Classic chassis and the Classic clip-on wheel assembly comprise the chassis-body framework which, in large part, supports the golf bag and clubs. Together with the battery, motor and controller, they provide the motive force that imparts the cart’s maneuverability. Only the third wheel with supporting mechanism, and the tubular steel handle with bag restraint and variable speed control are required to complete the cart. The three components under protest, in our opinion, are the very essence of a complete or finished motorized cart. They constitute the aggregate of distinctive component parts that establish its identity as what it is, a motorized cart for carrying a golf bag with clubs. These components have the essential character of the complete or finished article.
The Bat-Caddy® is a motor vehicle that is used for transporting golf bags filled with golf clubs over a golf course. The front wheel is steered by using the handlebars and the brakes are operated by controls in the handle bars. With its open cargo area; triangular-shaped chassis; two rear wheels that are independently driven by separate battery-powered electric motor; and independent front wheel(s) that enable the vehicle to turn to the left or to the right, the Bat-Caddy® meets the definition of a motor vehicle under heading 8704, HTSUS.
In turning to protestant’s claims that the Bat-Caddy® should be classified under heading 8479, it is noted that EN 84.79 provides, in pertinent part, as follows:
This heading is restricted to machinery having individual functions, which:
Is not excluded from this Chapter by the operation of any Section or Chapter Note[;] and Is not covered more specifically by a heading in any other Chapter of the Nomenclature[;] and Cannot be classified in any other particular heading of this Chapter since:
(i) No other heading covers it by reference to its method of functioning, description or type[;] and (ii) No other heading covers it by reference to its use or to the industry in which it is employed[;] or (iii) It could fall equally well into two (or more) other such headings (general purpose machines).
* * * * *
For this purpose the following are to be regarded as having "individual functions":
Mechanical devices, with or without motors or other driving force, whose function can be performed distinctly from and independently of any other machine or appliance.
* * * * *
Mechanical devices which cannot perform their function unless they are mounted on another machine or appliance, or are incorporated in a more complex entity, provided that this function:
(i) is distinct from that which is performed by the machine or appliance whereon they are to be mounted, or by the entity wherein they are to be incorporated, and (ii) does not play an integral and inseparable part in the operation of such machine, appliance or entity.
* * * * *
The many and varied machines covered by this heading include inter alia:… [emphasis added].
* * * * *
Protestant relies upon CBP’s classification of the Sling-Ski® set and the Well Tractor® device under Heading 8479, HTSUS, to support a determination that the Bat-Caddy® should be classified in Heading 8479. In HQ H007654, CBP found that the Sling-Ski® set [had] sufficient mechanical capability to qualify as machinery and, that “although they must be mounted on a flatbed trailer, their function is separate and distinct from that of the trailer”, and therefore that the Sling-Ski® [had] an individual function as required of classification under heading 8479, HTSUS.
The Well Tractor® device was described as having “a long cylindrical body with connections at both ends and that is 19 feet and has a weight of 409 pounds. In HQ H053679, CBP found that the function of the Well Tractor® device, which was to drive or pull the attached tool string down the well bore, was distinct from the tool string’s function because the tool string can function without the Well Tractor® device being attached to it. CBP concluded that the Well Tractor® device is a machine having an individual function that it is not more specifically provided for elsewhere in Chapter 84 or in another chapter; that it is not excluded from classification in Chapter 84; and, therefore, that it was classified in Heading 8479, HTSUS.
The merchandise in HQ H007654 and in HQ H053679 is distinguished from the subject merchandise, where the Bat-Caddy® is provided for under heading 8704, HTSUS. Moreover, although the Bat-Caddy® has sufficient mechanical capability to qualify as machinery, based upon the existence of the electrical motor and it is not mounted on another machine or appliance or incorporated into a more complex entity. Therefore, the Bat-Caddy® does not have an individual function as required for classification in heading 8479, HTSUS.
In HQ H177796, CBP classified the Minkomatic 660 and the Minkomatic 670 under heading 8436, HTSUS, as “other agricultural, horticultural, forestry, poultry-keeping or bee-keeping machinery, including germination plant fitted with mechanical or thermal equipment; poultry incubators and brooders; parts thereof.” In reaching this decision, CBP noted that the Minkomatic, which is a four-wheeled vehicle that has a feed tank and a hydraulic feed pump that delivers to mink and fox pens - but no driver’s cabin, was not classified in heading 8704, HTSUS, or heading 8709, HTSUS, because it is not principally used for the transport of goods. Rather, CBP determined that the Minkomatic had two equally important functions: transport and mink feeding. Unlike the Minkomatic, the subject Bat-Caddy® is used solely for the transport of goods - golf clubs on a golf course.
Although it is noted in HQ H177796 that heading 8704, HTSUS, primarily describes vehicles for on-road use, motor vehicles under the heading are not restricted for use on streets and highways. See HQ 958326, supra. Even if on-road use were a requirement, the Bat-Caddy® is capable of traversing sidewalks and streets, through parking lots and over paved areas when moving from one golf hole to the next.
Protestant’s claim regarding classification of the Bat-Caddy® under heading 9506, HTSUS, is without merit. The merchandise is excluded from classification in heading 9506, HTSUS, by application of Note 1(n) to Chapter 95, HTSUS, which excludes “articles of Section XVII” from classification in Chapter 95. Because the instant Bat-Caddy® is prima facie classifiable under heading 8704.HTSUS, it is therefore excluded from Chapter 95. See HQ 085917, supra.
Moreover, this merchandise does not fall under the scope of heading 9506, HTSUS, which covers those articles that are required for sports or outdoor games and that are not specifically provided for elsewhere under the HTSUS.
EN 9506, provides, in pertinent part, the following:
(B) Requisites for other sports and outdoor games (other than toys presented in sets,
or separately, of heading 95.03) e.g.:
* * * * *
(3) Golf clubs and other golf equipment, such as golf balls, golf tees.
* * * * *
HQ 966736 cited to the use of the word "requisite" in EN 95.06(B) in stating:
[B]ased on the use of the word "requisite" in the ENs, we believe that the term golf equipment in heading 9506 includes only items that are essential for playing golf such as clubs, balls, and tees. Items that may be related to the experience of playing golf, but are not necessary for playing golf, such as the yardage scopes, would not be considered golf equipment within the meaning of heading 9506, HTSUS.
Although using the Bat-Caddy® may make it easier for someone to transport a golf bag filled with golf clubs around a golf course, it is neither essential nor necessary for use with golf bags or for playing the game of golf. Therefore, the Bat-Caddy® is not classified as golf equipment in heading 9506, HTSUS.
Based on the foregoing, we find that the merchandise in issue constitutes motorized vehicles designed to carry goods (i.e., golf bags), classified under heading 8704, HTSUS.
HOLDING:
By application of GRI 1, the Bat-Caddy® is classified in heading 8704, HTSUS. Specifically, it is classifiable in subheading 8704.90.00, HTSUS, which provides for motor vehicles for the transport of goods: Other. The column one, general rate of duty is 25% ad valorem. You are instructed to DENY the protest.
Sixty days from the date of this decision, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel and the public on the CBP Home Page on the World Wide Web at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles Harmon, Director
Tariff Classification & Facilitation Division