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HQ W968192




OCTOBER 3, 2006

CLA-2 RR:CTF:TCM 968192 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8714.99.8000

Port Director
U.S. Customs and Border Protection
555 Battery Street
San Francisco, CA 94111

RE: Protest 2809-06-100136; Rear Shock Absorbers for Bicycles

Dear Port Director:

This replies to your memorandum, dated April 4, 2006, forwarding Application for Further Review of Protest 2809-06-100136, filed by a broker on behalf of Fox Racing Shox, also known as Fox Factory, Inc., against your classification of rear shock absorbers for bicycles under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The Vanilla DH Rear Shock (the “DH”) was entered under a provision of heading 8714, HTSUS, as frames and forks, and parts thereof, for vehicles of headings 8711 to 8713. It was reclassified under another provision of heading 8714, HTSUS, as other parts and accessories of vehicles of headings 8711 to 8713, other, and the entry liquidated on December 30, 2005, under this provision. This protest was timely filed pursuant to 19 U.S.C. 1514(c)(3) and 19 CFR 174.12(e)(1).

ISSUE:

Whether Application for Further Review of Protest 2809-06-100136 satisfies the criteria for further review under 19 CFR §174.24 and §174.25.

LAW AND ANALYSIS:

Section 174.24 of the Customs and Border Protection (CBP) Regulations (19 CFR §174.24) lists the criteria for granting an AFR. It states that an AFR will be granted when the decision against which the protest was filed:

Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise;

Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts;

Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or

Is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to §177.11(b)(5) of this chapter.

Additionally, Section 174.25(b)(3) of the CBP Regulations (19 CFR §174.25(b)(3)) provides, in pertinent part, that an application for further review shall contain a statement of any facts or additional legal arguments, not part of the record, upon which the protesting party relies, including the criterion set forth in §174.24 which justifies further review.

Under Section V of the instant Protest (“Justification of Further Review Under the Criteria in 19 CFR 174.24 and 174.25”), the protestant does not provide any statement or evidence to substantiate that this protest involves facts or legal arguments which warrant further review by this office. Protestant has failed to complete Section V of the Protest in which justification for further review under the criteria set forth in 19 CFR §174.24 and §174.25 is required. Accordingly, we find that the protest fails to meet the criteria of 19 CFR §174.24 and the justification requirements of 19 CFR §174.25(b)(3), and that further review of the AFR is not warranted.

Notwithstanding the above, we provide the following analysis for your consideration in deciding this protest. The DH is a rear shock absorber for bicycles. It is a vibration-damping element that permits the rear wheel to move up and down when riding over rough terrain and to maintain maximum contact with the ground for the rider’s safety. Product literature describes an article consisting of a coiled spring over an aluminum shock body, a remote reservoir with multi-valve piston and an air
volume adjuster or AVA. The AVA is a pre-ride tuning feature. Turning the AVA ring before the ride begins allows the rider to tune the shock to any spring rate and riding condition by adjusting the compression threshold. This, in turn, affects spring kickback.

The term frame is not defined in the HTSUS nor is it discussed in the Harmonized Commodity Description and Coding System Explanatory Notes to heading 8714. In such cases, the term is to be construed in accordance with its common and commercial meanings, which are presumed to be the same. Dictionaries and other lexicons, read in concert, define frame as metal tubes welded together, How Stuff Works at www.howstuffworks.com; the fixed part of a bicycle, online Oxford English Dictionary at www.askoxford.com; and, the skeleton of a bicycle, Sheldon Brown’s Bicycle Glossary at www.sheldonbrown.com/gloss e-f.html. Thus, a bicycle’s frame is a rigid foundation which provides structure and support.

Product literature and internet sources indicate that a modern full suspension bicycle frame consists of a top tube and a down tube attached together by a head tube in a V-shape. A seat tube is then added to form a parallelogram-shape. A top stay, chain stay and bottom bracket are then attached to the seat tube to complete the frame. A number of suspension-related parts called the Swing Arm Assembly - of which the DH shock is one component - are also attached to or around the seat tube. The protestant maintains this configuration renders the DH shock integral to and, therefore, part of the bicycle’s frame.

A “part” of an article, for tariff purposes, is something necessary to the completion of that article. It is an integral, constituent, or component part, without which the article to which it is joined could not function as that article. A “part” must satisfy a specific and integral need in the operation or function of the article with which it is used. Mitsubishi International Corp. v. United States, 17 C.I.T. 871, 829 F. Supp. 1387 (1993). A “part” is an essential portion or integral element of an article without which the article could not operate in its intended capacity. Technicolor Videocassette, Inc. v. United States, 18 C.I.T. 181, 846 F. Supp. 1005 (1994). As previously stated, a bicycle frame is a rigid foundation that provides structure and support. The DH does not provide structure and support; rather, it has a separate and unique function, to dampen or cushion vibrations when riding over rough terrain. Therefore, while the DH shock attaches to the bicycle frame it is not necessary to the completion of the frame nor is it integral to the function of the frame. Rear shocks for bicycles are not parts of bicycle frames. They are classifiable in subheading 8714.99.8000, HTSUSA, as other parts and accessories for the vehicles of headings 8711 to 8713, other. See NY R02466, dated August 25, 2005.

HOLDING:

Protest 2809-06-100136 does not meet the criteria for further review under 19 CFR §174.24 and §174.25. Accordingly, the AFR should not have been granted. We are returning the protest file to your office for consideration of the above comments and appropriate action.

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 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,

Cynthia Reese
for Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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