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HQ 965511

July 9, 2002

CLA-2: RR:CR:GC 965511 DBS


TARIFF NO.: 9501.00.40

Mr. Bob King
Meijer, Inc.
2929 Walker, N.W.
Grand Rapids, MI 49544-9428

RE: Revocation of NY G84149; Power Edge Streetboard

Dear Mr. King:

In NY G84149, issued to you on November 9, 2000, the Director, National Commodity Specialist Division, New York, classified the Power Edge Streetboard in subheading 8716.80.50, Harmonized Tariff Schedule of the United States (HTSUS), as other as other vehicles not mechanically propelled. We have reconsidered the classification of this article and now believe it is incorrect.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of the above identified ruling was published on May 29, 2002, in the Customs Bulletin, Volume 36, Number 22. Several comments were received, all in support of the proposed actions.


The Power Edge Streetboard (UPC #7-13733-46924) is a foot-propelled scooter that you stated was designed to be ridden by children and teenagers. The board has two plastic wheels connected to a 19.5 inch (49.5 cm) long board made of aluminum alloy with an adjustable handle bar and foot brake. You state that the handlebar may be raised to a height of approximately 24 inches (61 cm) from its base. It has two removable foam padded grips. The Streetboard can be folded and the grips removed for storage in the carry bag that accompanies the scooter.


Whether foot-propelled scooters are classifiable as other vehicles, not mechanically propelled, of heading 8716, HTSUS, or as wheeled toys of heading 9501, HTSUS.


Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note. In the event that 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 may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

8716 Trailers and semi-trailers; other vehicles, not mechanically propelled; and parts thereof:

8716.80 Other vehicles:

8716.80.50 Other.

9501 Wheeled toys designed to be ridden by children (for example, tricycles, scooters, pedal cars); dolls’ carriages and dolls’ strollers; parts and accessories thereof: Wheeled toys designed to be ridden by children and parts and accessories thereof:

9501.00.40 Other.

According to the ENs, heading 8716, HTSUS, covers a group of non-mechanically propelled vehicles that were constructed for transporting goods or persons. The vehicles of this heading are designed to be towed by other vehicles, pushed or pulled by hand, or drawn by animals. The Power Edge Streetboard was designed to be propelled by direct pressure of the foot to the ground. It was not designed to be pulled by vehicle, hand or animal. Further, it was not constructed for the transport of goods.

EN 95.01(A) states, in pertinent part, that wheeled toys designed to be ridden by children are “usually designed for propulsion by the child itself either by means of pedals, hand levers or other simple devices which transmit power to the wheels though a chain or rod, or, as in the case of certain scooters, by direct pressure of the child’s foot against the ground.” EN 95.01(A)(2) specifically enumerates scooters as toys included in this heading.

Heading 9501 is an eo nomine classification provision for wheeled toys, namely scooters, designed to be ridden by children. An eo nomine provision is one that describes a commodity by a specific name, as opposed to use. The name is usually one common in commerce. Absent limiting language or indicia of contrary legislative intent, such a provision covers all forms of the article. See National Advanced Sys. v. United States, 26 F.3d 1107, 1111 (Fed. Cir. 1994). An eo nomine provision may be limited by use, but such use limitation should not be read into an eo nomine provision unless the name itself inherently suggests a type of use. See United States v. Quon Quon Co., 46 C.C.P.A. 70, 72-73 (1959), cited by Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999).

This eo nomine provision is limited. First, anything classifiable in that heading must be a toy. The term "toy" is also not defined in the HTSUS. However, the general EN for Chapter 95 states that the "Chapter covers toys of all kinds whether designed for the amusement of children or adults." Second, it must be designed to be ridden by children. Though this term suggests a use, that use does not control tariff classification entirely. The word “designed,” found in many phrases throughout the HTSUS, is “ambiguous, being susceptible of interpretation as ‘intended’ or as ‘particularly and specially constructed.’” Karoware, Inc., v. United States, 564 F. 2d 77, 82 (CCPA 1977). It is well established that whether an article is “specifically designed” or “specially constructed” for a particular purpose is determined by various factors, such as an examination of the article itself, its capabilities, as well as its actual use or uses. See Pacific Trail Sportswear v. United States, 5 C.I.T. 206 (1983). We must therefore consider various factors in determining the scope of heading 9501.

The EN to heading 9501 lists scooters among the toys covered by the heading. The ENs, in describing scooters that are propelled by foot, suggest they are considered wheeled toys. The instant scooter, as with other similar scooters, has a relatively sturdy, yet small, lightweight, portable construction. It can be adjusted to accommodate various sized persons. Foot-propelled scooters with 100mm hard rubber wheels, like this one, generally obtain a speed of 4 mph, which is within the range of speeds of an adult walking briskly. Unlike a bicycle, designed for transportation, foot-propelled scooters are not fast enough to adequately flow with traffic on the street and cannot be maneuvered easily by its design.

In terms of actual uses, children ride scooters in their driveways, around their neighborhoods, to friends’ houses, to school. In 2000, the Consumer Product Safety Commission (CPSC) reported 90% of scooter-related injuries were to children under 15. The CPSC, as well as many scooter advertisers, recommend parental supervision. Much of the literature available about scooters on the internet is geared towards children.

Adults also enjoy playing on scooters. Some adults commute to work because this type of scooter is portable and lightweight. Some scooter manufacturers direct advertising only to the adult market. Scooters such as the subject model are often advertised to both younger children and teenagers, though some scooters may also be advertised to adults. In short, scooters serve both as a plaything and as personal transportation for relatively short distances. “When amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose is incidental to the amusement.” Ideal Toy Corp. V. United States, 78 Cust. Ct. 28, 33 (1977).

Certain scooters are clearly designed with a primary purpose other than amusement. Some scooters have platforms ideal for toting goods. Motor-powered scooters can travel at speeds in excess of 15 mph, which is ideal for transportation. Computerized scooter devices are far too advanced to be designed primarily to amuse. Any amusement is incidental to the utility of these types of scooters. On the other hand, the foot-propelled scooter at issue has no additional or special feature that would tip the scales in favor of utility.

In addition, though a wheeled toy of heading 9501, HTSUS, must be designed to be ridden by children, there is nothing to suggest that the wheeled toys must be solely used by children. In Marubeni America Corp. v. United States, 35 F.3d 530, 535 (Fed.Cir. 1994), a case focusing on whether a motor vehicle was principally designed for the transport of persons or of goods, the court opined that, to answer the question, "one must look at both the structural and auxiliary design features, as neither by itself is determinative." That is, even if an object has a primary or principal design, it is not automatically controlling. See, e.g., Sears Roebuck & Co. v. United States, 22 F.3d 1082 (Fed.Cir. 1994).

The Marubeni court rejected a proposition requiring that the design of vehicles at issue be for the sole use of transporting persons, excluding all other uses, in part because both the heading and the ENs specifically mentioned station wagons, which are dual-purpose vehicles. Similarly, the specific inclusion of scooters in both the legal text and the ENs, and the specific description in the ENs of foot-propelled scooters, does not support a requirement of sole use by children of heading 9501, HTSUS. A scooter may be designed to be ridden by children and still capable of use on occasion by adults, or even to transport cargo.

Moreover, "tariff terms are written for the future as well as the present, meaning that tariff terms can be expected to encompass merchandise not known to commerce at the time of their enactment, provided the new article possesses an essential resemblance to the one named in the statute." United States v. Standard Surplus Sales, Inc., 69 C.C.P.A. 34, 667 F.2d 1011, 1014 (CCPA 1981). The change from the Tariff Schedules of the United States (TSUS), the precursor to the HTSUS, to the HTSUS was intended to provide consistent tariff treatment. Item 732.43, TSUS, provided, in pertinent part, for: “Tricycles, scooters, wagons, pedal cars, and other wheeled goods (except skates), all the foregoing designed to be ridden by children, and parts thereof.” provided for scooters. The continuity of the eo nomine designation in the two texts supports the classification of this scooter in heading 9501. Today’s foot-propelled scooters, while admittedly more advanced, closely resemble the foot-propelled scooters that enjoyed popularity in the United States in the 1930’s and 1950’s, as well as other foot-propelled scooters previously classified in heading 9501. Thus, heading 9501 encompasses the scooter at issue.

In HSC 28 in November 2001 (Annex HG/16 to Doc. NC0510E2), the Harmonized System Committee (HSC) of the World Customs Organization (WCO) determined the classification of two- or three-wheeled scooters with adjustable steering columns, small solid front and rear wheels and generally a foot brake on the rear wheel, in heading 9501, by application of GRI 1. In essence, the HSC determined that nothing in the heading required that wheeled toys be used solely by children. The scooters examined by the HSC are substantially similar to the scooter at issue. Classification opinions of the HSC may provide assistance in the understanding of the international agreement, the Harmonized System, on which the HTSUS is based. The HSC decision is consistent with our decision here.

For the reasons above we conclude that NY G84149 was in error. Accordingly, the instant foot-propelled scooter is classifiable under heading 9501, HTSUS, rather than heading 8716, HTSUS.


The Power Edge Streetboard is classified in subheading 9501.00.40, HTSUS, which provides for “Wheeled toys designed to be ridden by children (for example, tricycles, scooters, pedal cars); dolls’ carriages and dolls’ strollers; parts and accessories thereof: wheeled toys designed to be ridden by children and parts and accessories thereof: other.”


NY G84149, dated November 9, 2000, is hereby revoked. In accordance with 19 U.S.C 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.


Myles B. Harmon, Acting Director
Commercial Rulings Division

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