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HQ 951813


August 17, 1992

CLA-2 CO:R:C:M 951813 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.99.60

Mr. Linc Alexander
Lexander Industries Inc.
P.O. Box 34244 Stn. "D"
Vancouver, B.C., Canada V6J 4N8

RE: Bodisail/Bodiscooter; 8716; EN 87.16; EN 95.06

Dear Mr. Alexander:

This is in response to your letter of March 24, 1992, requesting the classification of the Bodisail/Bodiscooter under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was referred to this office for a response.

FACTS:

The article in question consists of the Bodisail and the Bodiscooter. The sail is worn by the scooter operator by means of a backpack attachment. While wearing the sail, the operator stands on the scooter platform. The force of the wind on the sail propels the scooter forward.

The sail is composed of an aluminum frame and a nylon sail. It can be adjusted by a hand-controlled lever to catch the desired wind. The scooter is a non-powered, wheeled apparatus made of steel tube construction. It has two spoked wheels, a platform where the operator stands and a steering column with handlebars. The scooter does not have pedals or any other motive power.

ISSUE:

Whether the Bodisail/Bodiscooter is classifiable as an article or equipment for general physical exercise, gymnastics, athletics, other sports or outdoor games under Heading 9506, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."

The headings at issue are as follows:

8716 Trailers and semi-trailers; other vehicles, not mechanically propelled . . .

9506 Articles and equipment for general physical exercise, gymnastics, athletics, other sports . . . or outdoor games, not specified or included elsewhere in this chapter . . .

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Co-operation Council's official interpretation of the Harmonized System. While not legally binding, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings. EN 95.06, pg. 1593, states that Heading 9506, HTSUS, excludes "sports vehicles (other than bobsleighs (bobsleds), toboggans and the like), of Section XVII [emphasis in original]." Thus, if the article in question is classifiable under Heading 8716, HTSUS, a Section XVII heading, it cannot be classified under Heading 9506, HTSUS.

Heading 8716, HTSUS, describes trailers, semi-trailers and other vehicles, not mechanically propelled. EN 87.16, pg. 1439, states that "[t]his heading covers a group of non-mechanically propelled vehicles (other than those of the preceding headings) equipped with one or more wheels and constructed for the transport of goods or persons. It also includes non-mechanical vehicles not fitted with wheels (e.g., sledges, special sleds running on timber trackways) [emphasis in original]."

The Bodisail/Bodiscooter is a non-mechanically propelled vehicle. However, the ENs make it clear that Heading 8716, HTSUS, does not cover all non-mechanically propelled vehicles. EN 87.16, pg. 1439, states that "[t]he vehicles of this heading are designed to be towed by other vehicles (tractors, lorries, trucks, motorcycles, bicycles, etc.), to be pushed or pulled by hand or to be drawn by animals." Further, non-mechanically propelled winter sports equipment, such as toboggans, bobsleds, n- 3 -
and the like, are excluded from Heading 8716, HTSUS. See EN 87.16, pg. 1441; EN 95.06, pg. 1593.

The article in question is propelled by the wind, rather than by hand, animal or other vehicle. It is our opinion that the Bodisail/Bodiscooter is not the type of vehicle contemplated by Heading 8716, HTSUS. Rather, it is similar to the non- mechanically propelled sailboard which is classifiable under Heading 9506 (subheading 9506.21.40), HTSUS. Sailboards are small, flat sailboats designed for one or more passengers, which, like the article in question, are propelled by the wind. Thus, the Bodisail/Bodiscooter is classifiable as an article for general physical exercise, athletics or outdoor games.

HOLDING:

The Bodisail/Bodiscooter is classifiable under subheading 9506.99.60, HTSUS, which provides for "[a]rticles and equipment for general physical exercise, gymnastics, athletics, other sports (including table tennis) or outdoor games, not specified or included elsewhere in this chapter . . . [o]ther . . . [o]ther . . . [o]ther." The corresponding rate of duty for articles of this subheading is 4.64% ad valorem, or 2.7% ad valorem upon compliance with the regulations for the United States-Canada Free Trade Agreement.

Sincerely,

John Durant, Director

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