Request for Reconsideration of NY N312986; Tariff Classification of a Handled Electric Skateboard from China

HQ H313241 April 20, 2022 CLA-2 OT:RR:CTF:EMAIN H313241 JDK CATEGORY: Classification TARIFF NO.: 8711.60.00 Neil Reynolds, Founder Yawboard Limited 10 Pennard Road, Flat A London, England W12 8DS RE: Request for Reconsideration of NY N312986; Tariff Classification of a Handled Electric Skateboard from China Dear Mr. Reynolds, This is in response to your letter, dated July 22, 2020, submitted on behalf of Yawboard Limited (“Yawboard”) requesting reconsideration of New York Ruling (“NY”) N312986, dated July 16, 2020. In NY N312986, United States Customs and Border Protection (CBP) classified a Yawboard electric skateboard with handle under the Harmonized Tariff Schedule of the United States (HTSUS). Upon review of NY N312986, we have determined the ruling to be correct. We are accordingly affirming the ruling. FACTS: The instant merchandise is described in NY N312986 as follows: The “Yawboard” is a four (4) wheeled electric scooter, equipped with a handle for stability and ease of steering. The Yawboard is equipped with a Li-ion battery, which powers two (2) 800W brushless motors. In your request, you state the top speed of the Yawboard is 20mph, a range of approximately 20 miles and an estimated weight of 12-14kg. A supplied remote control is used to accelerate and brake the scooter. In NY N312986, CBP classified the Yawboard electric skateboard in subheading 8711.60.00, HTSUS, which provides for, “Motorcycles (including mopeds) and cycles fitted with an auxiliary motor, with or without side-cars; side-cars: With electric motor for propulsion…” However, you argue that the skateboard should be classified under heading 9506, HTSUS as an article for general physical exercise. ISSUE: Whether the motorized skateboard with handle is classified under heading 8711, HTSUS as a motorcycle and cycle fitted with an auxiliary motor, or under heading 9506, HTSUS as an article for general physical exercise. LAW AND ANALYSIS: The HTSUS headings under consideration are as follows: 8711 Motorcycles (including mopeds) and cycles fitted with an auxiliary motor, with or without side-cars; side-cars. 9506 Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof. Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). It is well established that heading 8711, HTSUS includes skateboards or scooters with motors. In HQ H257373, CBP determined that heading 8711, HTSUS, includes not only conventional motorcycles but also motor-scooters which are characterized by their small wheels and by a horizontal platform which joins the front and rear portions of the vehicle. The ENs to heading 8711, HTSUS, further state that the heading covers electrically-powered transportation devices, designed for carrying a single person, for use within low speed areas such as pavements (sidewalks), paths, and bicycle lanes. By contrast, wheeled articles whose principal purpose are to provide exercise or physical activity are classified in heading 9506, HTSUS. In HQ 956485, dated August 4, 1994, CBP classified a “Rad Board,” a skateboard-like device, under heading 9506, HTSUS, as an article of general physical exercise. The Rad Board in HQ 956485 consisted of three angled boards connected by tubular pipe, eight wheels and three handles. It did not contain a motor, could be ridden standing up or sitting down, and thus required a degree of athletic skill such as timing, coordination, and balance. In this case, the Yawboard electric handled skateboard is a skateboard with a motor and is designed and marketed as an item used for transportation. The presence of a motor indicates that the item is generally not intended to be foot-powered, thereby lessening the capacity to provide the user with meaningful exercise and a reasonable degree of physical activity. It also lessens the athletic skill or effort required to operate the skateboard. As a result, we conclude that the subject article is not classified as an article for general physical exercise of heading 9h06, but rather in heading 8711, HTSUS. You cite to NY R02559 (Sep. 16, 2005) in support of your position that the motorized skateboard is classified under heading 9506, HTSUS. In NY R02559, we classified a skateboard with a motor in heading 9506, HTSUS. However, the skateboard in NY R02559 does not have a handlebar to help steer or keep the balance of the user whereas the instant skateboard has handlebars and is marketed as a product to transport persons from one place to another, across a variety of outdoor terrains. Therefore NY R02559 does not apply in this case. In light of the foregoing, the subject handled electric skateboard remains classified in heading 8711, HTSUS which provides for, “Motorcycles (including mopeds) and cycles fitted with an auxiliary motor, with or without side-cars; side-cars.” HOLDING: By application of GRIs 1 and 6, the subject handled electric skateboard remains classified in heading 8711, HTSUS, specifically in subheading 8711.60.00, HTSUS, which provides for “Motorcycles (including mopeds) and cycles fitted with an auxiliary motor, with or without side-cars; side-cars: With electric motor for propulsion….” The general, column one rate of duty is free. Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 8711.60.00, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. As discussed in NY N312986, the subject merchandise is not specifically excluded from the additional duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.02, in addition to subheading 8711.60.0090, HTSUS, listed above. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at https://hts.usitc.gov/current. EFFECT ON OTHER RULINGS:      NY N312986 (July 16, 2020) is hereby AFFIRMED. Sincerely, Craig T. Clark, Director Commercial and Trade Facilitation Division