CLA-2-87:OT:RR:NC:N4:424
Mr. Nazareno Caponi
Tecnoartusa
120 Broadway
Hammonton, NJ 08037
RE: The tariff classification of quadricycles from Italy
Dear Mr. Caponi:
In your letter submitted September 22, 2016, you requested a tariff classification.
A photograph and description of the Selene Sport and Selene Bus, also commonly known as surreys or quadricycles, were submitted with your inquiry. Both are four-wheeled pedal-powered cycles with chains, cranks and manual hand brakes. They are equipped with double steering wheels (only one actually controls the cycle’s direction), four customized alloy wheels and a vinyl canopy roof. The approximate dimensions of the Selene Bus are 101” (L) x 47” (W) x 70” (H) with a weight of 331 lbs., while the Selene Sport’s dimensions are 72” (L) x 46” (W) x 70” (H) and it weighs 251 lbs. The Selene Bus has two rows of cushioned bench seats for adults and children and an additional seating area at the front of the quadricycle suitable for two small children. The Selene Sport has one row of cushioned bench seats with a similar seating area for small children at its front. There are no electronics of any kind on either of these cycles and they are both used exclusively on boardwalks and in other recreational areas. They are not used on any public road or streets.
In your request you suggest classifying these two quadricycles in heading 9503 as toys as they are used by kids on boardwalks and other similar areas, sometimes accompanied by parents or adults. However, as the courts have noted, “Heading 9503 does not cover every item with wheels that is principally used for amusement.” In understanding the language of the tariff, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 95.03(A) provides the following exemplars of wheeled toys:
(1) Children’s tricycles and the like, but excluding bicycles of heading 87.12.
(2) 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.
(3) Pedal- or hand-propelled wheeled toys in the form of animals.
(4) Pedal cars, frequently in the form of miniature sports cars, jeeps, lorries, etc.
(5) Wheeled toys, propelled by hand levers.
(6) Other wheeled toys (with no mechanical transmission system) which are designed to be drawn or pushed, and are large enough for children to ride.
(7) Children’s cars powered by a motor.
The instant items are not similar to these exemplars. CBP has consistently held that a free-wheeling hub is a feature that distinguishes whether an article is classified as a cycle as opposed to a wheeled toy. A free-wheeling hub allows the rider to coast without having to pedal constantly. Surreys are equipped with this feature, thus, classification as a wheeled toy is precluded. Moreover, the Selene Sport and Selene Bus are too large and heavy to be safely used solely by children. Additionally, they require a significant amount of strength and stamina to propel them which would preclude them from use as a children’s toy.
EN 87.12 states that among the articles classified within heading 8712 include “non motorised cycles, i.e., pedal operated vehicles equipped with one or more wheels (e.g., bicycles (including those for children), tricycles and quadricycles).” EN 87.12(7) provides for “Quadricycles, equipped with several seats and several sets of pedals, the whole being enclosed within a lightweight structure.” The Selene Sport and Selene Bus meet this description and are prima facie classified in heading 8712.
The applicable subheading for the Selene Sport and Selene Bus will be 8712.00.5000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Bicycles and other cycles (including delivery tricycles), not motorized: Other cycles”. The duty rate will be 3.7%.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist James Forkan at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division