H328536

HQ H328536 February 6, 2023 CLA-2 OT:RR:CTF:EMAIN H328536 TPB CATEGORY: Classification TARIFF NO.: 8903.99.91 David M. Schwartz Thompson Hine, LLP 1919 M. St. NW, Suite 700 Washington, DC 20036-3537 David.Schwartz@ThompsonHine.com Re: Request to reconsider NYRL N327185; Classification of a personal hydrofoil Dear Mr. Schwartz: The following is our decision regarding your request for reconsideration of New York Ruling Letter (NYRL) N327185, dated August 10, 2022, on behalf of your client, Manta5 LP (Manta5; Importer) regarding the tariff classification of Manta5’s Hydrofoiler SL3 e-Bike (Hydrofoiler) from China, under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: In NYRL N327185, the subject Hydrofoil is described as follows: The subject merchandise is a Manta5 Hydrofoiler SL3 e-Bike, which has all water terrain capabilities and made with the intention of building a new sport. It is equipped with the following top features: an easy electric only launch, 10 levels of motor assistance, throttle override, up to 4 hours of ride time, a composite monocoque chassis with new floatation and mount ergonomics, carbon fiber or composite foils, 19.4 kilometers per hour or 12.05 miles per hour top speed, disassembly into 4 pieces for easy transport, 36 kilograms total assembled weight, Bluetooth connectivity, a dedicated App [application], and a dual waterproof lithium-ion 58-volt Hydro pack battery. The variable electric assist 2.5-kilowatt motor is controlled by a remote, or pedal assist, which allows the user to effectively cycle between 10 levels of motor assistance. The motor assistance provides versatility, for a wide range of body types, fitness levels, and the ability to allow an individual to choose the intensity of their ride. It also includes a manual mode, to allow the rider to pedal without motor assist, or ride and coast, with no pedaling required. The Hydrofoiler SL3 incorporates an integrated LCD display, which displays live battery level, assist level, throttle position, system warnings, rider power display, and rider cadence display. The Hydrofoiler SL3 also has added safety features, such as a propeller shroud, independent manual and electric drives, and tilt sensors that cut power to the propeller when you fall. In Manta5’s request for reconsideration, the importer provided additional information and arguments, including schematics and videos, which have been taken into consideration. Namely, the importer describes the product at issue as the world’s first hydrofoil bike. The importer’s website claims that the Manta5’s sole purpose has been to replicate an intuitive cycling experience on water. Although the website also claims that the product is suitable for a wide range of sizes and abilities (“If you can ride a bike and swim, you can ride the Hydrofoiler SL3”), importer notes in its submission that operating the Hydrofoiler requires training and a measurable degree of athletic ability and skill. Balancing is critical, and even though there is a battery-powered motor to assist with commencement of the ride and continued forward movement, a rider needs to maintain a speed of six mph to prevent the bike from submerging. (The Hydrofoiler does not have enough independent buoyancy to support the rider’s body weight while not propelling forward, and the bike will be submerged while stationary, but will not sink.). ISSUE: Is the product under consideration, the Hydrofoiler SL3, properly classified under subheading 9506.29, HTSUS, as an article/equipment for general exercise or other sport; or subheading 8903.99, HTSUS, which provides for other vessels for pleasure or sports? LAW AND ANALYSIS: Classification under the HTSUS is made 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 HTSUS provisions under consideration are as follows: 8903 Yachts and other vessels for pleasure or sports; row boats and canoes: 8903.99 Other: 8903.99.91 Other * * * 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: 9506.29.00 Other 9506.29.00 Other Note 1(q) to Chapter 95, HTSUS, excludes, in pertinent part, “[s]ports craft such as canoes and skiffs (chapter 89)….” As such, if the subject Hydrofoiler is a sports craft like canoes and skiffs of heading 89.03, it is excluded from classification under heading 95.06. In the Importer’s view, the Hydrofoiler cannot be classified under heading 89.03 because it does not have enough floatation to support the rider’s body weight while not propelling forward, and will be submerged while stationary, but will not sink. Importer argues that watercraft of heading 89.03 do not submerge while stationary, noting in particular that the Hydrofoiler has no physical or water-worthy characteristics that are similar to a skiff or a canoe. Skiffs, canoes and similar watercraft have bottoms and sides to keep water out and to keep them afloat. Moreover, the Importer is of the view that classifying the Hydrofoiler under a provision that identifies yachts, rowboats, canoes, sailboats and motorboats does not make sense, as the Hydrofoiler has none of the characteristics of the articles identified under heading 89.03. While heading 89.03 does provide for yachts, rowboats, and canoes, it also provides for other vessels for pleasure or sports. When tariff terms are not defined in the tariff or the EN they will be construed in accordance with their common and commercial meaning. See Nippon Kogaku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). The common and commercial meaning of tariff terms, such as “vessels,” may be determined by consulting reliable resources, such as dictionaries, lexicons, scientific authorities, encyclopedias, etc. See C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). Oxford English Dictionary (“OED” – online): 4. a. Any structure designed to float upon and traverse the water for the carriage of persons or goods; a craft or ship of any kind, now usually one larger than a rowing boat and often restricted to seagoing craft or those plying upon the larger rivers or lakes. Frequently with distinctive premodifiers, as bomb-, fishing, gun-, machine-, sailing-, steam-, trading-, transport-, war-vessel, etc. In this case, the appropriate premodifier would be water-, as in water vessel, and we therefore must determine if that describes the product at issue for classification purposes. While the definition used in the OED states that a vessel is “now usually” larger than a rowing boat and often restricted to seagoing craft or those plying upon larger rivers or lakes, this definition, by context, is not intended to be restrictive, nor could it anticipate all possible forms of vessels. The Hydrofoiler SL3 is an article that is designed to float upon, and allow a person to traverse water, whether for pleasure or sport. As such, it meets the terms of heading 89.03. Further, we may also consult the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) which constitute the official interpretation of the Harmonized System (HS) at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). The ENs for heading 89.03 provide a list of products classifiable under that heading, including “…yacht

Classification under the HTSUS is made 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 HTSUS provisions under consideration are as follows:8903 Yachts and other vessels for pleasure or sports; row boats andcanoes:8903.99 Other: 8903.99.91 Other* * *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:9506.29.00 Other9506.29.00 OtherNote 1(q) to Chapter 95, HTSUS, excludes, in pertinent part, “[s]ports craft such as canoes and skiffs (chapter 89)….” As such, if the subject Hydrofoiler is a sports craft like canoes and skiffs of heading 89.03, it is excluded from classification under heading 95.06. In the Importer’s view, the Hydrofoiler cannot be classified under heading 89.03 because it does not have enough floatation to support the rider’s body weight while not propelling forward, and will be submerged while stationary, but will not sink. Importer argues that watercraft of heading 89.03 do not submerge while stationary, noting in particular that the Hydrofoiler has no physical or water-worthy characteristics that are similar to a skiff or a canoe. Skiffs, canoes and similar watercraft have bottoms and sides to keep water out and to keep them afloat. Moreover, the Importer is of the view that classifying the Hydrofoiler under a provision that identifies yachts, rowboats, canoes, sailboats and motorboats does not make sense, as the Hydrofoiler has none of the characteristics of the