HQ H264275
May 14 2015
CLA-2 OT: RR: CTF: TCM: H264275 ERB
Ms. Ann Shih
Logistics Manager
Razor USA LLC
12723 E. 166th Street
Cerritos, CA 90703
RE: Ruling Request: Tariff classification of the Razor Crazy Cart XL Go-Cart
Dear. Ms. Shih:
This letter is in response to your request, on behalf of Razor USA LLC (Razor), dated March 4, 2015, to U.S. Customs and Border Protection (CBP), National Commodity Specialist Division (NCSD), for a binding ruling on the tariff classification of the Razor Crazy Cart XL, under the Harmonized Tariff Schedule of the United States (HTSUS). Your ruling request was forwarded to this office by NCSD for a response. No samples were provided for this analysis.
FACTS:
The Razor Crazy Cart XL is a miniaturized electric version of a go-cart. The specific model at issue here is designed for children 16 years of age and older. The item consists of a bucket seat, variable speed foot pedal that controls an extra-high torque chain-drive motor and vertical steering wheel atop a steel frame. There is one powered pneumatic wheel below the steering column which acts as the main steering wheel for the cart and for corner mounted caster wheels which allows for 360 degree steering capability and tight cornering. A drift bar allows the driver to control their drifts and spins. There is no brake, the user stops the vehicle by removing his/her foot from the accelerator pedal and turning the steering wheel to either side. It is powered by three 12V (36V total) rechargeable batteries that provide for up to 40 minutes of continuous use before needing to be recharged. Razor’s submission states that it is capable of going up to 17 miles per hour (mph). The maximum allowed weight is 240 pounds. It is sold with a lap and shoulder strap, racing flag and battery charger.
ISSUE:
Whether the subject electric go-cart is a motor vehicle of heading 8703, HTSUS, or whether it is a wheeled toy, of heading 9503, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The HTSUS headings under consideration are the following:
8703 Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars:
9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:
Note 1 to Section XVII, which covers Chapter 87, states the following in relevant part:
This section does not cover articles of heading 9503…
Note 1(n) to Chapter 95 states the following:
This chapter does not cover:
(n) Sports vehicles (other than sleds, bobsleds, toboggans and the like) of section XVII.
Thus, if the subject merchandise is described as a “sports vehicle” of Section XVII, which includes motor vehicles of Chapter 87, then it is excluded from classification in Chapter 95, by operation of Note 1(n) to Chapter 95. Similarly, if the subject merchandise is described as a “wheeled toy” of heading 9503, HTSUS, then it is not classified in Section XVII, specifically, Chapter 87, by operation of Note 1 to Section XVII.
The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. 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 at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General EN to Chapter 87 states the following, in relevant part:
The Chapter also excludes:
(b) Wheeled toys designed to be ridden by children, and children’s cycles (other than children’s bicycles)(heading 95.03).
The EN 87.03 states the following, in relevant part:
This heading covers motor vehicles of various types (including amphibious motor vehicles) designed for the transport of persons; it does not, however, cover the motor vehicles of heading 87.02. The vehicles of this heading may have any type of motor (internal combustion piston engine, electric motor, gas turbine, etc.).
***
The classification of certain motor vehicles in this heading is determined by certain features which indicate that the vehicles are principally designed for the transport of persons rather than for the transport of goods (heading 87.04). These features are especially helpful in determining the classification of motor vehicles which generally have a gross vehicle weight rating of less than 5 tonnes and which have a single enclosed interior space comprising an area for the driver and passengers and another area that may be used for the transport of both person and goods. Included in this category of motor vehicles are those commonly known as “multipurpose” vehicles (e.g., van-type vehicles, sports utility vehicles, certain pick-up type vehicles). The following features are indicative of the design characteristics generally applicable to the vehicles which fall in this heading:
Presence of permanent seats with safety equipment (e.g., safety belts or anchor points and fittings for installing safety seat belts) for each person or the presence of permanent anchor points and fittings for installing seats and safety equipment in the rear area behind the area for the driver and front passengers; such seats may be fixed, fold-away, removable from anchor points or collapsible;
Presence of rear windows along the two side panels;
Presence of sliding, swing-out or lift-up door or doors, with windows, on the side panels or in the rear;
Absence of a permanent panel or barrier between the area for the driver and front passengers and the rear area that may be used for the transport of both person and goods;
Presence of comfort features and interior finish and fittings throughout the vehicle interior that are associated with the passenger areas of vehicles (e.g., floor carpeting, ventilation, interior lighting, ashtrays).
The EN 95.03 states:
This heading covers:
(A). Wheeled toys.
These articles are usually designed for propulsion either by means of pedals, hand levers or other simple devices which transmit power to the wheels through a chain or rod, or, as in the case of certain scooters, by direct pressure of a person’s foot against the ground. Other types of wheeled toys may be simply drawn or pushed by another person or driven by a motor.
These toys include:
Children’s tricycles and the like, but excluding bicycles of heading 87.12.
Two- or three-wheeled scooters designed to be ridden by children, as well as youngsters and adults, with an adjustable or non-adjustable steering column and small solid or inflatable wheels. They are sometimes equipped with a bicycle-type handle-bar, a hand brake or a foot brake on the rear wheel.
***
And it continues:
(D) Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults)….
The Court of International Trade (CIT) opined on the wheeled toy provisions of heading 9503, HTSUS, in its decision in Streetsurfing LLC. v. United States, 11 F. Supp. 3d 1287 (Ct. Int’l Trade 2014). There, the CIT noted that heading 9503, HTSUS is a principal use provision. Principal use provisions are governed by the HTSUS Additional U.S. Rule of Interpretation 1, which states in part that “a classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States, at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.” See also HQ H233999, dated March 7, 2013 (classifying a Doodle Buddy).
The language of the heading text, as well as the language of the ENs to 95.03 are clear that articles classified therein are done so because they are “toys”. Classification as a toy under heading 9503, HTSUS, requires that the article be principally used as a toy for amusement and should not serve a utilitarian purpose. See StoreWALL, LLC. V. United States, 644 F.3d 1358, 1365-66 (Fed. Cir. 2011). Toys have been found to include “articles whose principal use is amusement, diversion, or play, rather than practicality.” Processed Plastic Co. v. United States, 473 F.3d 1164, 1169 (Fed. Cir. 2006) (quoting Minnetonka Brands, Inc. v. United States, 24 CIT 645, 110 F. Supp. 2d 1020 (Ct. Int’l Trade 2000). See also HQ H236028, dated December 31, 2013 (classifying an Aquadoodle product as a “toy”).
The CIT also acknowledged in Streetsurfing LLC v. United States, supra, that heading 9503, HTSUS, does not cover every item with wheels that is principally used for amusement. Id at 1295. Ultimately, the court applied the ENs to the subject waveboards at issue there, and held that a wheeled toy under heading 9503 is characterized by the following features: (1) the absence of a training requirement prior to its use; (2) the absence of a meaningful risk of injury involved in its use; (3) the lack of acquired skill to fully utilize the item; (4) the lack of exercise or athletic aspect in the item’s use; and (5) the presence of an assistive device. Streetsurfing LLC v. United States, 11 F. Supp. 3d 1287, 1296-98 (Ct. Int’l Trade 2014). These five enumerated characteristics of “wheeled toys” are persuasive and relevant here, insofar as they elaborate on the scope of heading 9503, HTSUS.
The subject merchandise does not require any special training to use, nor is any demonstrable skill necessary to fully utilize the item. Users sit in the Crazy Cart bucket seat and operate the cart by use of a single foot pedal and simple steering wheel. The article doesn’t even have a brake function, relying only on the user to remove his/her foot from the pedal to slow down or stop, or users may pull the drift bar and drift to a stop. The Crazy Cart does not provide any exercise for the user, and it contains an assistive device. Pursuant to the CIT’s framework above, each of these characteristics demonstrate that the Crazy Cart is properly described as a wheeled toy, of heading 9503, HTSUS. The only characteristic that gives this office pause that the Crazy Cart is not a wheeled toy is the high rate of speed which it is capable of moving. Operating the Cart at this speed could cause a meaningful risk of injury if it is not used properly. However, the majority of the criteria weigh in favor of the Crazy Cart classified as a wheeled toy, of heading 9503, HTSUS. Further, the article does not serve a utilitarian purpose, such as transportation. It is designed solely for amusement. Thus, by operation of Note 1, to Section XVII, as the good is described by the tariff terms of heading 9503, HTSUS, as a “wheeled toy” then it is excluded from classification in Chapter 87.
This is consistent with previous CBP rulings classifying substantially similar articles (in both design and function) in this heading. See New York Ruling (NY) N244519, dated August 21, 2013 (classifying a slightly smaller version of the Razor Crazy Cart in heading 9503, HTSUS), and NY N260756, dated February 9, 2015 (classifying a Razor Jr. “Lil’ Crazy, in heading 9503, HTSUS).
Moreover, the subject merchandise does not meet the terms of heading 8703, HTSUS, as a “motor vehicle.” The EN 87.03 show that vehicles properly classified therein have certain design features which identify them as vehicles designed for the transport of person. The subject Crazy Carts do not have any of the specified safety or comfort amenities provided for in the EN 87.03(a) through (e), which mark goods classified therein as designed as a personal transport vehicle.
HOLDING:
By application of GRI 1, the subject merchandise, Razor Crazy Cart XL Go-Cart, is classified in heading 9503, HTSUS. It is specifically provided for in subheading 9503.00.00, HTSUS, which provides for, “Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof.” The column one rate of duty is free.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification & Marking Branch