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HQ 967562




JUNE 2, 2005

CLA-2 RR:CR:GC 967562 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8712.00.1510

Port Director, U.S. Customs and Border Protection 301 E. Ocean Blvd., suite 1400
Long Beach, CA 90802

RE: Protest 2704-03-100884; Mini Bicycle

Dear Port Director:

This is our decision on Protest 2704-03-100884, filed by counsel on behalf of International Fidelity Insurance Company against your classification of mini bicycles under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

The goods were entered in 2001 under subheading 9501.00.4000, HTSUSA, as other wheeled toys designed to be ridden by children. They were reclassified under subheading 8712.00.1510, HTSUSA, as bicycles having both wheels not exceeding 63.5 cm in diameter and the entry liquidated on January 10, 2003, under this provision. This protest was timely filed on April 10, 2003.

FACTS:

The merchandise under protest is described as a mini bicycle or mini-bike. It has single 6-inch front and rear solid rubber tires with rear spring suspension and front air suspension. The mini-bike has an extendable T-shaped handle bar with foam grips, a full-sized seat and kickstand. The rider propels the bike using pedals which transmit power to the wheels through a chain. Cycles of this type typically feature a 250 pound capacity and weigh less than 20 pounds. They are offered in several colors, have a free wheel that enables the rider to coast while riding, a hand brake and chain guard. They are advertised for use by persons age 6 to adult.

The HTSUS provisions under consideration are as follows:

8712 Bicycles and other cycles (including delivery tricycles), not motorized:

Bicycles having both wheels not exceeding 63.5 cm in diameter

Wheeled toys designed to be ridden by children (for example, tricycles, scooters, pedal cars);:

Wheeled toys designed to be ridden by children and parts and accessories thereof:

9501.00.40 Other

ISSUE:

Whether the mini-bike is a bicycle of heading 8712.

LAW AND ANALYSIS:

Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

Chapter 87, Note 4, HTSUS, states that heading 8712 includes all children’s bicycles. Other children’s cycles fall in heading 9501. Chapter 95, Note 1(o), HTSUS, excludes children’s bicycles of heading 8712.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. U.S. Customs and Border Protection (CBP) believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Counsel’s argument in support of the claim under heading 9501 is that the mini-bicycles or mini-bikes are similar in design and capabilities to scooters of heading 9501, citing the 95.01 ENs. A mini-bike cannot be pedaled fast enough to adequately flow with traffic on the street and, thus, is not designed primarily for transportation. Its utility is incidental to its amusement value. Counsel also cites HQ 965760 and HQ 952045 to support the heading 9501 claim. Counsel maintains the mini-bike is substantially similar in design to cycles marketed as the “Runt” mini-bicycle which, it maintains, is a scooter of heading 9501.

Initially, relevant 95.01 ENs indicate that included among the wheeled toys described by that heading are two-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 handlebar, and a hand brake or foot brake on the rear wheel. The claim is that the mini-bikes at issue conform to this description. But, the 95.01 ENs also describe certain scooters in which power is transmitted to the wheels by direct pressure of the child’s foot against the ground. The mini-bikes do not conform to this description. Children’s tricycles and the like are examples of the wheeled toys identified in the heading 95.01 ENs, but bicycles of heading 8712 are excluded. In this context, we note that among the non-motorized cycles or pedal-operated vehicles equipped with one or more wheels covered by heading 8712 are bicycles, including bicycles for children.

The first case counsel cites, HQ 965760, dated July 9, 2002, addressed the tariff status of a foot-propelled, foldable scooter. In negating classification as a non-mechanically propelled vehicle of heading 8716, HQ 965760 found the good to be within the eo nomine designation in heading 9501, for wheeled toys, namely scooters, designed to be ridden by children. A key factor appears to be that the good bore the appellation scooter. Because HQ 965760 contains no discussion of heading 8712, and in view of Chapter 95, Note 1(o), HTSUS, we find that this decision is not instructive here.

The second case, HQ 952045, dated October 1, 1992, classified a toy bicycle designed for use by children 2-3 years of age as a wheeled toy designed to be ridden by children, in subheading 9501.00.4000, HTSUSA. HQ 952045 cited the heading 87.12 ENs which, in addition to cycles of the conventional type, describe bicycles equipped with a wheeled balancing-support fitted to a hub of the rear wheel. The decision cited Note 1(o) to Chapter 95 and concluded the good was not a bicycle of heading 8712, citing two reasons. First, the training wheels were required to keep the cycle upright, the two large wheels being too small to support the bicycle in a vertical position. Without the training wheels, a child would not be able to achieve the speed necessary to keep the cycle upright. Second, the front hub was not free wheeling rather, the pedals are permanently attached to the front hub. This means the user could
not coast while riding but would have to pedal constantly to continue forward motion. Similarly, NY G87057, dated March 2, 2001, classified a pedal-driven toy cycle with training wheels in subheading 9501.00.0000, HTSUSA. The ruling noted that the pedals were connected to the front wheel which impeded [the ability to] balance the cycle without the training wheels.

The mini-bikes at issue have a free wheeling hub, that is, they are free standing, which means that the rider can coast without having to pedal constantly, and they lack training wheels which keep the cycle upright. Cycles with these design features are equipped with a wheeled balancing-support fitted to a hub of the rear-wheel, and qualify as bicycles of heading 8712. Noting Note 1(o) to Chapter 95, they cannot be classifiable in heading 9501 as wheeled toys designed to be ridden by children. We note that the “Runt” mini-bicycle which counsel asserts is substantially similar in design to the mini-bikes at issue here, has a free wheel, a design feature associated with bicycles of heading 8712.

HOLDING:

Under the authority of GRI 1, the mini-bikes are provided for in heading 8712. They are classifiable in subheading 8712.00.1510, HTSUSA. The 2001 rate of duty under this provision is 11 percent ad valorem.

The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Robert F. Altneu
for Myles B. Harmon, Director
Commercial Rulings Division

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