OT:RR:CTF:EMAIN H322923 SKK
TARIFF NO’s.: 8716.80.5090; 9903.88.34
Center Director Automotive and Aerospace Center of Excellence and Expertise U.S. Customs & Border Protection
200 East Bay St
Charleston, SC 29401
Attn: Darryl Lockhart, Import Specialist; Janean Shahied, Supervisory Import Specialist
Re: Application for Further Review of Protest No. 2704-20-147641; Classification; Applicability of Section 301 trade remedies; Non-mechanically propelled carts/wagons from China
Dear Center Director:
This is our decision regarding an Application for Further Review (AFR) of Protest No. 2704-20-147641 filed on behalf of Max Sports Inc. (Protestant). The Protest and AFR concern the classification of non-mechanically propelled carts/wagons from China under the Harmonized Tariff Schedule of the United States (HTSUS) and the applicability of Section 301 trade remedies. No samples were provided for examination. The AFR was forwarded to this office for consideration.
FACTS:
The subject articles are described by Protestant as non-mechanically propelled portable folding wagons comprised of tubular steel frames, rubber tires and fabric coverings. The wagons weigh approximately 21.1 pounds and are available in a variety of prints and colors. They fold compactly to approximately 25% of their open size for storage and measure in their opened state 43.7” x 20.2” x 22.5” and in their folded state 29.5” x 20.2” x 8”. The various models offer different design features such as slide-out tables, lower platforms, extended bodies, and all terrain wheels, etc. The wagons are described as for the transport of various personal items, such as groceries, household supplies, plants, gardening items, ice chests, sports equipment etc. The model numbers identified in this AFR are WTCB 100/103/105/110 (All Terrain Wagon); SPK 100/101/102/103/104/105/106/107 (All Terrain Wagon with table); DD-HSN Print and 100 (Double Decker); WTC 109/118/145/207/S207 (Standard Wagon), and; WTCX 100 (Extended Wagon). Several styles of the subject wagons are depicted on the manufacturer’s website as set forth below (https://macsports.com/collections/wagons (site last visited July 28, 2022)):
The subject merchandise was entered between September 19, 2019, and May 2, 2020, and liquidated between August 14, 2020, and November 13, 2020, under heading 8716, specifically under subheading 8716.80.5090, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for “[T]railers and semi-trailers; other vehicles, not mechanically propelled; and parts thereof: Other vehicles: Other: Other: Other.” As products of China, the merchandise was subject to an additional 25 percent ad valorem duty imposed by heading 9903, HTSUS, specifically subheading 9903.88.03, HTSUS, which provides for “[E]xcept as provided in headings 9903.88.13, 9903.88.18, 9903.88.33 or 9903.88.34, articles the product of China, as provided for in U.S. note 20(e) to this subchapter and as provided for in the subheadings enumerated in U.S. note 20(f) [to this subchapter].”
On November 17, 2020, Protestant submitted Section 301 exclusion requests for the subject wagons. The USTR denied the requests.
On November 18, 2020, Protestant filed the instant Protest and AFR. Protestant does not dispute the wagons’ primary liquidated classification under subheading 8716.80.5090, HTSUSA, but asserts that notwithstanding denial of its Section 301 exclusion requests, the subject wagons are entitled to relief from Section 301 duties as the wagons are classified under subheading 8716.80.5090, HTSUSA, and clearly fall within the scope of the granted exclusion for that provision pursuant to U.S. Note 20(p)(7) and corresponding subheading 9903.88.13, HTSUS, which provides for “[C]arts, not mechanically propelled, each with three or four wheels, of the kind used for household shopping (described in statistical reporting number 8716.80.5090).”
ISSUE:
Whether the subject wagons fall within the scope of the Section 301 exclusion granted under U.S. Note 20(p)(7) and corresponding subheading 9903.88.13, HTSUS.
LAW AND ANALYSIS:
A decision on classification and the rate and amount of duties chargeable is a protestable matter under 19 U.S.C. §1514(a)(2). The subject Protest was timely filed on November 18, 2020, within 180 days of liquidation of the first entry, pursuant to 19 U.S.C. § 1514(c)(3). Further Review of Protest No. 2704-20-147641 is properly accorded pursuant to 19 CFR
§ 174.24(a), as the decision against which the protest was filed is alleged to be inconsistent with a CBP ruling or decision with respect to the same or substantially similar merchandise. As justification for further review pursuant to 19 CFR 174.24(a), Protestant notes that in New York Ruling Letter (NY) N306374, dated October 21, 2019, U.S. Customs and Border Protection (CBP) classified a substantially similar cart under subheading 8716.80.5090, HTSUSA, and determined that the cart was eligible for the Section 301 exclusion granted under U.S. Note 20(p)(7) and corresponding subheading 9903.88.13, HTSUS. See also NY N307004, dated November 20, 2019, in which CBP classified several substantially similar models of folding utility wagons used for personal goods under subheading 8716.80.5090, HTSUSA, with a finding that the wagons were eligible for the above exclusion.
Classification under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods is determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event 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 2 through 6 will then be applied in order.
There is no dispute that the subject wagons are properly classified under subheading 8716.80.5090, HTSUSA. This determination is consistent with NYs N306374 and N307004, cited supra, in which substantially similar merchandise was classified under subheading 8716.80.5090, HTSUSA.
As correctly noted in Protestant’s submission, the scope of each exclusion from Section 301 duties is governed by the product descriptions forth in the Annex, and not by product descriptions set forth in a particular request for exclusion. See 84 FR 38718 (August 17, 2019). Therefore, notwithstanding the denial of Protestant’s Section 301 exclusion requests, the determinative issue in this AFR is whether the subject wagons fall within the scope of an applicable Section 301 exclusion.
Chapter 99, Subchapter III, U.S. Note 20(p)(7) covers “[C]arts, not mechanically propelled, each with three or four wheels, of the kind used for household shopping (described in statistical reporting number 8716.80.5090)” and corresponds to subheading 9903.88.13, HTSUS. The subject wagons are fitted with four wheels, for use in household shopping and transporting personal goods, and are not mechanically propelled. The term “cart” is recognized by online lexicographic sources as a synonym for “wagon.” See https://www.merriam-webster.com/thesaurus/wagon (site last visited Aug. 2, 2022). Accordingly, the subject wagons fall within the scope of U.S. Note 20(p)(7), are classified in subheading 9903.88.13, HTSUS, and are therefore excluded from Section 301 duties.
As regards the product identified as the “Sam’s Club Chair” (model C932S-137), imported under two entries at issue in this Protest (entry nos. 862-11054530 and 862-11051700), we note that there is no legal basis for according further review pursuant to 19 CFR 174.24(a) as there are no applicable inconsistent rulings pertaining to this merchandise. However, as there is no dispute regarding the chair’s liquidation under heading 9401, HTSUS, specifically subheading 9401.79.0015, HTUSA, which provides for “[S]eats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Other seats, with metal frames: Other: Other: Outdoor: With textile covered cushions or textile seating or backing material: Other,” and the determinative issue is limited to whether the subject chair falls within the scope of an applicable Section 301 exclusion, this office will offer a determination for the port’s guidance on this matter.
Chapter 99, Subchapter III, U.S. Note 20(mm)(22) covers “[F]olding chairs with frames of steel and/or aluminum, each measuring 30 cm or more but not over 97 cm in width, 20 cm or more but not over 89 cm in depth and 30 cm or more but not over 117 cm in height (described in statistical reporting number 9401.79.0015)” and corresponds to subheading 9903.88.34, HTSUS. As the subject chair is a folding model, constructed of a steel frame, and measuring 81 cm in width, 73 cm in depth, and 91 cm in height, it falls within the scope of the granted exclusion and is therefore excluded from Section 301 duties.
HOLDING:
By application of GRIs 1 and 6, the subject wagons are classified under heading 8716, HTSUS, specifically subheading 8716.80.5090, HTSUSA, which provides for “[T]railers and semi-trailers; other vehicles, not mechanically propelled; and parts thereof: Other vehicles: Other: Other: Other.” The 2019 and 2020 column one, general rate of duty was 3.2% ad valorem. As a 4-wheeled wagon for personal goods and household shopping that is not mechanically propelled (described in statistical reporting number 8716.80.5090), the subject wagons are eligible for exclusion from Section 301 duties under U.S. Note 20(p)(7) and corresponding tariff number 9903.88.13, HTSUS.
By application of GRIs 1 and 6, the subject chair is classified under heading 9401, HTSUS, specifically subheading 9401.79.0015, HTUSA, which provides for “[S]eats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Other seats, with metal frames: Other: Other: Outdoor: With textile covered cushions or textile seating or backing material: Other.” The 2019 and 2020 column one, general rate of duty is free. As the subject Sam’s Club Chair (model C932S-137) is a folding chair with a steel frame, measuring 81 cm wide, 73 cm deep, and 91 cm high, it is eligible for exclusion from Section 301 duties under U.S. Note 20(mm)(22) and secondary tariff number 9903.88.34, HTSUS.
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 online at http://www.usitc.gov/tata/hts/.
You are instructed to GRANT the protest in full.
You are instructed to notify the Protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/, or other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Acting Director Commercial and Trade Facilitation Division