Multi-track hybrid bicycle; HQ 087735; Subheading 8712.00.35;16 CFR 1512.11(b); 15 U.S.C. 1263; Forester v. Consumer ProductsSafety Commission; International Spring Mfg. Co. v. U.S.

HQ 950319 December 11, 1991 CLA-2 CO:R:C:M 950319 AJS CATEGORY: Classification TARIFF NO.: 8712.00.25 Steven P. Sonnenberg, Esq. Sonnenberg, Anderson, O'Donnell & Rodriguez Attorneys & Counsellors at Law 200 West Adams Street Suite 2625 Chicago, Illinois 60606 RE: Multi-track hybrid bicycle; HQ 087735; Subheading 8712.00.35; 16 CFR 1512.11(b); 15 U.S.C. 1263; Forester v. Consumer Products Safety Commission; International Spring Mfg. Co. v. U.S. Dear Mr. Sonnenberg: This is in reply to your letter of August 30, 1991, regarding HQ 087735 (August 27, 1990), concerning the tariff classification of bicycles. FACTS: The merchandise at issue are various models of the "Multi- Track" hybrid style bicycle. They possess 700c rims, have wheels exceeding 65 cm in diameter, and weigh less than 16.3 kilograms complete without accessories. Such bicycles would either be classifiable within subheading 8712.00.25, Harmonized Tariff Schedule of the United States (HTSUS), which provides for "[b]icycles having both wheels exceeding 63.5 cm in diameter: [i]f weighing less than 16.3 kg complete without accessories and not designed for use with tires having a cross-sectional diameter exceeding 4.13 cm."; or within subheading 8712.00.35, HTSUS, which provides for "other" bicycles having both wheels exceeding 63.5 cm in diameter. -2- ISSUE: What is the proper procedure for determining whether a bicycle is "not designed for use with tires having a cross- sectional diameter exceeding 4.13 cm." LAW AND ANALYSIS: In HQ 087735 (August 27, 1990), Customs interpreted the predecessor provision of subheading 8712.00.25 (i.e., 8712.00.20). We stated that for a bicycle to be classified within this provision, the importer must demonstrate that there are important design features in the bicycle that preclude the use of tires exceeding 1.625 inches (currently 4.13 cm). Furthermore, it is not enough to prove that a bicycle was designed with smaller tires in mind. The use of tires exceeding 4.13 cm must be inconsistent with the safe and proper operation of the bicycle. Your letter requests that Customs establish a proper procedure for determining whether a bicycle exhibits important design features that preclude the safe and proper use of tires having a cross-sectional diameter exceeding 4.13 cm. After a careful review of the matter, we agree that such a procedure would be beneficial to Customs and the importing community. Accordingly, we have developed the following procedure which is based on a series of questions which should be asked in the following order. The answer to these questions will form the basis for a determination as to the proper classification of these types of bicycles. 1. Does the bicycle, upon importation, have rims for which there are no commercially available tires with a width greater than 4.13 cm ? If the answer is "yes", then the bicycle is classifiable within subheading 8712.00.25, HTSUS, based on the fact that the entire wheel would have to be changed in order to use a tire exceeding 4.13 cm. The subject "Multi-Track" hybrids possess a 700c rim, for which there are no commercially available tires with a width exceeding 4.13 cm. Accordingly, the "Multi-Track" hybrids are properly classifiable within subheading 8712.00.25, HTSUS. If the answer to the above question had been "no", then the following question should be addressed: 2. Does a clearance of greater than 1.6 mm exist between the bicycle tire and fork or any frame member when the -3- wheel assembly is rotated to any position ? For example, Is the width of the front fork (measured horizontally where the widest part of a tire would be located) greater than 4.45 cm (this represents 4.13 cm plus 1.6 mm on each side of the tire) ? If the answer is "no", then the bicycle is classifiable within subheading 8712.00.25, HTSUS. This 1.6 mm clearance standard is based on the regulations of the Consumer Products Safety Commission (CPSC). These regulations state that "[t]he wheel assembly [of a bicycle] shall be aligned such that no less than 1.6 mm (1/16 in.) clearance exists between the tire and fork or any frame member when the wheel assembly is rotated to any position." 16 CFR 1512.11 (b)(1991). Bicycles which do not meet this standard are classified as banned hazardous substances under the Federal Hazardous Substance Act and prohibited from introduction or delivery into interstate commerce. 15 U.S.C. 1263 (1970). This standard has been found to be reasonable and upheld in court. Forester v. Consumer Products Safety Commission, 559 F.2d 774, 796 (1977). It is well settled, however, that this type of standard is not binding for tariff purposes. International Spring Mfg. Co. v. United States, 496 F. Supp. 279 (1980). Nevertheless, we do find it helpful for determining whether a bicycle possesses important design features that preclude the use of tires exceeding 4.13 cm. If the answer to Question 2 had been "yes", then the following question should be addressed: 3. Would any substantial work involving welding or other frame adjustment be necessary to accommodate a tire with a width greater than 4.13 cm ? (Such work could involve moving studs for caliper brakes, etc.) If the answer is "yes", then the bicycle is classifiable within subheading 8712.00.25, HTSUS. Mere certification by the importer or manufacturer is not sufficient for this above determination. Independent engineering or laboratory reports should be consulted. If the answer is "no", then the bicycle is classifiable within subheading 8712.00.35, HTSUS, based on the fact that the use of tires exceeding 4.13 cm would not be inconsistent with the safe and proper operation of the bicycle. -4- HOLDING: The "Multi-Track" hybrid bicycle models are classifiable within subheading 8712.00.25, HTSUS, which provides for "[b]icycles having both wheels exceeding 63.5 cm in diameter: [i]f weighing less than 16.3 kg complete without accesories and not designed for use with tires having a cross-sectional diameter exceeding 4.13 cm", dutiable at the rate of 5.5 percent ad valorem. Sincerely, Harvey B. Fox Director Office of Regulations & Rulings