CLA-2 OT:RR:CTF:EMAIN H310061 ALS
Port Director
U.S. Customs and Border Protection
301 E. Ocean Boulevard, Suite 1400
Long Beach, California 90802
Attn.: Ms. Juliana Fluckiger, Supervisory Import Specialist, Electronics Center of Excellence and Expertise
RE: Application for Further Review Protest No. 2704-20-116799; Tariff classification of the Hover-1 All-Star 2.0 Hoverboard
Dear Port Director:
This letter is in reply to an Application for Further Review (“AFR”) of Protest number 2704-20-116799, filed on behalf of Hype Wireless, LPD Ltd. (also referred to herein as “Protestant”) on March 13, 2020. The Protest is against U.S. Customs and Border Protection’s (“CBP’s”) tariff classification of the above-referenced Hover-1 All-Star 2.0 Hoverboard under subheading 8711.90.01 of the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The Hover-1 All-Star 2.0 Hoverboard, model number H1-STR2, is a personal transportation device with two 200-watt Lithium-ion battery-charged electric motors, two wheels, one axle, and a platform on which the user stands while hoverboard is in motion. It is similar in appearance to skateboards, except that Hover-1 is horizontally oriented relative to the direction of travel as opposed to vertically oriented as skateboards are. The Hover-1 has a top speed of seven (7) miles an hour and seven miles of range on a full charge. The platform has LED-lighted footpads and LED-lighted headlights on the front edge of the platform. The wheels are also LED-lighted. The Hover-1, model number H1-STR2, is available in either blue or pink.
On January 3, 2019, the Protestant entered several of the Hover-1 under subheading 9503.00.00, HTSUS, as a scooter or similar wheeled toy. On November 22, 2019, CBP liquidated the subject entries under subheading 8711.90.01, HTSUS, as other cycles fitted with an auxiliary motor. The Protestant contends that the Hover-1 should be classified under subheading 8711.60.00, HTSUS, as cycles fitted with an electric motor for propulsion.
ISSUE:
Is the Hover-1 All-Star 2.0 Hoverboard, as described above, properly classified under subheading 8711.60.00, HTSUS, which provides for “Motorcycles (including mopeds) and cycles fitted with an auxiliary motor, with or without side-cars; side-cars: With electric motor for propulsion…”, or subheading 8711.90.01, HTSUS, which provides for “Motorcycles (including mopeds) and cycles fitted with an auxiliary motor, with or without side-cars; side-cars: Other…”?
LAW AND ANALYSIS:
Initially, we note that the Protest was timely filed on March 13, 2020, which is within 180 days of the date of the liquidation of the subject entries, November 22, 2019. See 19 U.S.C. §1514(c)(3)(B). Additionally, CBP’s classification of the merchandise is a protestable matter under 19 U.S.C. §1514(a)(2). Further Review of Protest No. 2704-20-116799 is properly accorded to the Protestant pursuant to 19 CFR 174.24(b).
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation (“ARI”). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings 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, GRIs 2 through 6 may be applied in order. GRI 6 provides the following:
For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings
at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
The following subheadings of the HTSUS are under consideration in this case:
8711 Motorcycles (including mopeds) and cycles fitted with an auxiliary motor, with or without side-cars; side-cars:
8711.60.00 With electric motor for propulsion…
8711.90.01 Other…
There is no dispute that the Hover-1 is properly classified under heading 8711, HTSUS, as a cycle fitted with an auxiliary motor. The Protestant argues that CBP has issued several rulings classifying articles similar to the Hover-1 under subheading 8711.60.00, such as electric scooters of NY N284661 (March 27,2017), of NY N285801 (May 9, 2017), of NY N285800 (May 9, 2017), of NY N297093 (June 5, 2018), of NY N298922 (July 17, 2018), and of NY N306552 (October 25, 2019). The Protestant notes that CBP issued all of these rulings after subheading 8711.60.00 was added to the HTSUS in 2017, and that CBP has not since then issued a ruling for similar merchandise under subheading 8711.90.01.
Upon review, we agree with the Protestant. We note in particular that since the filing of this AFR, CBP has ruled that a hoverboard is properly classified under subheading 8711.60.00. See NY N319331 (June 3, 2021). The presence of an electric motor, and the fact that this motor propels the vehicle, clearly establishes the Hover-1 as a cycle fitted with an electric motor for propulsion. As such, the Hover-1 is properly classified under subheading 8711.60.00, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the Hover-1 All-Star 2.0 Hoverboard is classified under subheading 8711.60.00, HTSUS, which provides for “Motorcycles (including mopeds) and cycles fitted with an auxiliary motor, with or without side-cars; side-cars: With electric motor for propulsion…” The general, column one rate of duty for merchandise classified in this subheading is Free.
Pursuant to U.S. Note 20(c) to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 8711.60.00, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, an importer must report the Chapter 99 subheading, i.e., 9903.88.02, in addition to subheading 8711.60.00, HTSUS, noted above, for products of China.
The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china respectively.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
You are instructed to APPROVE the protest inasmuch as this results in classifying the merchandise under subheading 8711.60.00, HTSUS.
You are to notify the protestant no later than sixty days from the date of this decision. Sixty days from the date of the decision, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, which can be found on the CBP website at http://www.cbp.gov or other methods of public distribution.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division