CLA-2 OT:RR:CTF:TCM H136456 RES
U.S. Customs and Border Protection
Service Port – Houston
2350 N. Sam Houston Pkwy E, Suite 1000
Houston, TX 77032-3100
ATTN: Kathy Coffman, Supervisory Import Specialist
RE: Internal Advice Request No. 10/036; Tariff classification of a “Cruzin Cooler”
Dear Port Director:
On November 24, 2010, you requested internal advice with regard to the tariff classification of the “Cruzin Cooler” under the Harmonized Tariff Schedule of the United States (“HTSUS”). Your request was initiated by a submission dated September 9, 2010, on behalf of Cruzin Cooler LLC (“CCL”). This letter responds to your request.
FACTS:
The article at issue in this request for internal advice is called a “Cruzin Cooler” and is described in the importer’s September 9, 2010, memorandum as follows:
[The vehicle] is a unique novelty product that is a three-wheeled electric- or gas-powered scooter built within a plastic cooler chassis. A chain connects the motor of the Cruzin Cooler to the drive axle. The product weighs approximately 65 pounds, has a maximum speed of approximately 13 miles per hour, can carry a total of approximately 300 pounds including driver, and has a range of approximately 15 miles, depending upon whether it is powered by an electric or gasoline motor. A driver sits on the steel-reinforced cooler chassis, which has a padded seat and back rest for the driver’s comfort, and steers the scooter using handlebars that have a hand brake. Footpegs are positioned near the handlebar post for the rider’s posture and comfort. The inside of the cooler is compartmentalized whereby slightly less than one half of the internal cooler space is dedicated to the machinery that drives the scooter’s rear wheels, namely, a battery and motor. The other half of the cooler, measuring approximately 1 cubic foot, is functional, allowing riders to store a handful of cold beverages.
In addition, according to the importer’s website, the Cruzin Cooler’s cooler capacity is for up to twenty-four 12-ounce beverage cans and eight pounds of ice. The Cruzin Cooler comes with a choice of electric motors with battery power ranging from 250 to 2000 watts or is available in a 33 cc gas-powered engine. The model with the 2000 watt option does not have any storage space in the Cruzin Cooler’s cooler chassis as this model utilizes two 1000 watt batteries. The padded seat is an optional accessory. The article sells at retail from $349 to $1399, depending on power options.
A sample of a Cruzin Cooler article has been provided to CBP. It has an electric motor and is powered by a 250 watt battery. An examination of the sample reveals that it rides swiftly and easily over hard surfaces and has a cup holder on the top of the cooler where a rider can put their beverage while driving. The cup holder also flips up allowing the rider of the cooler to reach into the storage compartment to grab a drink without having to get off the cooler seat and lifting up the top.
ISSUE:
Whether the subject Cruzin Cooler is classified under heading 8703, HTSUS, as a motor vehicle for the transport of persons, or heading 8704, HTSUS, as a motor vehicle for the transport of goods, or heading 8711, HTSUS, as a cycle?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings 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 GRI 2 through 6 may be applied in order.
The following HTSUS provisions are under consideration:
8703 Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars:
8704 Motor vehicles for the transport of goods:
8711 Motorcycles (including mopeds) and cycles fitted with an auxiliary motor, with or without side-cars; side-cars:
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The ENs to heading 87.03 provide in pertinent part:
This heading covers motor vehicles of various types (including amphibious motor vehicles) designed for the transport of persons; it does not, however, cover the motor vehicles of heading 87.02. The vehicles of this heading may have any type of motor (internal combustion piston engine, electric motor, gas turbine, etc.).
The heading also covers lightweight three-wheeled vehicles of simpler construction, such as:
- those fitted with motorcycle engine and wheels, etc. which by virtue of their mechanical structure, possess the characteristics of conventional motor cars, that is motor car type steering system or both reverse gear and differential;
- those mounted on a T-shaped chassis, whose two rear wheels are independently driven by separate battery-powered electric motors. These vehicles are normally operated by means of a single central control stick with which the driver can start, accelerate, brake, stop and reverse the vehicle, as well as steer it to the right or to the left by applying a differential torque to the drive wheels or by turning the front wheel.
* * * * *
The classification of certain motor vehicles in this heading is determined by certain features which indicate that the vehicles are principally designed for the transport of persons rather than for the transport of goods (heading 87.04). These features are especially helpful in determining the classification of motor vehicles which generally have a gross vehicle weight rating of less than 5 tonnes and which have a single enclosed interior space comprising an area for the driver and passengers and another area that may be used for the transport of both persons and goods. Included in this category of motor vehicles are those commonly known as “multipurpose” vehicles (e.g., van-type vehicles, sports utility vehicles, certain pick-up type vehicles). The following features are indicative of the design characteristics generally applicable to the vehicles which fall in this heading:
Presence of permanent seats with safety equipment (e.g., safety seat belts or anchor points and fittings for installing safety seat belts) for each person or the presence of permanent anchor points and fittings for installing seats and safety equipment in the rear area behind the area for the drive and front passengers; such seats may be fixed, fold-away, removable from anchor points or collapsible;
Presence of rear windows along the two side panels;
Presence of sliding, swing-out or lift-up door or doors, with windows, on the side panels or in the rear;
Absence of a permanent panel or barrier between the area for the driver and front passengers and the rear area that may be used for the transport of both persons and goods;
Presence of comfort features and interior finish and fittings throughout the vehicle interior that are associated with the passenger areas of vehicles (e.g., floor carpeting, ventilation, interior lighting, ashtrays).
Vehicles specialized for use in fairgrounds, e.g., “dodge’em” cars are classified in heading 95.08.
(Emphases in original).
The ENs to 87.04 provide in pertinent part:
This heading covers in particular:
Ordinary lorries (trucks) and vans (flat, tarpaulin-covered, closed, etc.); delivery trucks and vans of all kinds, removal vans; lorries (trucks) with automatic discharging devices (tipping lorries (trucks), etc.); tankers (whether or ot fitted with pumps); refrigerated or insulated lorries (trucks); multi-floored lorries (trucks) for the transport of acid in carboys, cylinders of butane, etc.; dropframe heavy-duty lorries (trucks) with loading ramps for the transport of tanks, lifting or excavating machinery, electrical transformers, etc.; lorries (trucks) specially constructed for the transport of fresh concrete, other than concrete-mixer lorries (trucks) of heading 87.05; refuse collectors whether or not fitted with loading, compressing, damping, etc., devices.
The classification of certain motor vehicles in this heading is determined by certain features which indicate that the vehicles are designed for the transport of goods rather than for the transport of persons (heading 87.03). These features are especially helpful in determining the classification of motor vehicles, generally vehicles having a gross vehicle weight rating of less than 5 tonnes, which have either a separate closed rear area or an open rear platform normally used for the transport of goods, but may have rear bench-type seats that are without safety seat belts, anchor points or passenger amenities and that fold flat against the sides to permit full use of the rear platform for the transport of goods. Included in this category of motor vehicles are those commonly known as “multipurpose” vehicles (e.g., van-type vehicles, pick-up vehicles and certain sports utility vehicles). The following features are indicative of the design characteristics generally applicable to the vehicles which fall in this heading:
Presence of bench-type seats without safety equipment (e.g., safety seat belts or anchor points and fittings for installing safety seat belts) or passenger amenities in the rear area behind the area for the driver and front passengers. Such seats are normally fold-away or collapsible to allow full use of the rear floor (van-type vehicles) or a separate platform (pick-up vehicles) for the transport of goods;
Presence of a separate cabin for the driver and passengers and a separate open platform with side panels and a drop-down tailgate (pick-up vehicles);
Absence of rear windows along the two side panels; presence of sliding, swing-out or lift-up door or doors, without windows, on the side panels or in the rear for loading and unloading goods (van-type vehicles);
Presence of a permanent panel or barrier between the area for the driver and front passengers and the rear area;
Absence of comfort features and interior finish and fittings in the cargo bed area which are associated with the passenger areas of vehicles (e.g., floor carpeting, ventilation, interior lighting, ashtrays).
* * * * *
The heading also excludes:
* * *
(c) Motorcycles, motor-scooters or motorized cycles constructed for the transport of goods (heading 87.11)
* * * * *
(Emphases in original).
The ENs to 87.11 provide in pertinent part:
This heading covers a group of two-wheeled motorized vehicles which are essentially designed for carrying persons.
* * * * *
Three-wheeled vehicles (e.g., the “delivery tricycle” type) are also classified here provided they do not have the character of motor vehicles of heading 87.03 (See the Explanatory Note to heading 87.03).
The heading further covers side-cars of all kinds, a type of vehicle which is designed for the transport of passengers or goods, and which cannot be used independently. They are quipped with a wheel on one side, the other side bearing fittings enabling the side-car to be attached to, and to travel alongside, a cycle or motorcycle.
This heading excludes:
Four-wheeled motor vehicles, for the transport of persons, with tube chassis, having a motor-car type steering system (e.g., a steering system based on the Ackerman principle) (heading 87.03).
Trailers designed for attachment to a cycle or motor cycle (heading 87.19).
(Emphases in original).
Because the Cruzin Cooler is a motorized vehicle, the headings under consideration would be headings 8703, 8704, and 8711, HTSUS. As a preliminary matter, heading 8711, HTSUS, is under consideration because the Cruzin Cooler has three wheels. The threshold as to whether heading 8711, HTSUS, can be considered for classification purposes for a vehicle is based on the number of wheels a vehicle has, which is limited to three or two wheels. If a vehicle has four wheels, heading 8711, HTSUS, would not be a consideration. This distinguishes the Cruzin Cooler from the article in HQ H030419, dated October 29, 2009, which was a motorized vehicle with four wheels and a cooler customized for the chassis of the vehicle. Therefore, HQ H030419 is not controlling on the issue of a three-wheeled vehicle with a cooler body.
Of the ENs to headings 8703, 8704, and 8711, that describe the type of vehicles classifiable under each heading, the closest analogue in any of these headings to the Cruzin Cooler is the three-wheeled “delivery-type” vehicle described in EN 87.11. According to EN 87.11, a three-wheeled vehicle is classifiable under heading 8711, HTSUS, as long as it “does not have the character of a motor vehicle of heading 8703.” The EN to 87.03 indicates that the heading includes light weight three-wheeled vehicles with both reverse gear and differential.
Based upon the descriptions of motorcycles and two-wheeled scooters in EN 87.11 and the common characteristics of these articles in commerce, the following characteristics are found in various types of commercially sold motorcycles and two-wheeled scooters: handle bar steering mechanism; an accelerator located on the hand grip of the handle bars; a hand brake; a seat (either saddle seating or step through seating); automatic or manual transmission; driven by a chain or belt; and a motor (either gas or electric powered) that is under or behind the seat. In comparison, the Cruzin Cooler has: three wheels, which is the threshold to be considered classifiable under heading 8711; a handle-bar steering mechanism; an electric motor; a seat that a rider straddles like saddle seating (in this case, the top of a cooler body); is chain driven; and has small wheels like a two-wheeled scooter does. Therefore, the Cruzin Cooler has the features of cycles noted in EN 87.11 and those common characteristics of cycles in commerce.
The Cruzin Cooler does not have the character of a motor vehicle of heading 8703, HTSUS, because it does not possess any of the characteristics listed in the ENs 87.03 describing the type of three-wheeled vehicles classifiable under this heading and does not have any characteristics that only vehicles of headings 8703 or 8704, would have and which would not be characteristics of an article under heading 8711. For example, the Cruzin Cooler does not possess a motor car type steering system (an Ackerman type steering system or a rack and pinion type steering mechanism); does not have a reverse and rear differential; does not have two rear wheels which are powered by two separate motors and are controlled by a central control stick.
The Cruzin Cooler also has none of the features listed as indicative of vehicles of heading 8703, HTSUS, such as permanent seats with safety equipment, windows, doors, comfort features, etc. See HQ 010587, dated November 24, 2009 (finding that a three-wheeled vehicle with “a conventional automobile’s body that is completely enclosed; front and back windshield, side windows, a dashboard with gauges, seat belts, and so on” has the characteristics of a motor vehicle classifiable under heading 8703). Therefore, because the Cruzin Cooler does not have reverse gear or differential or design characteristics for vehicles under heading 8703, HTSUS, listed in EN 87.03, it is not classified under that heading. Furthermore, the ENs to 87.04 specifically exclude cycles of heading 8711, HTSUS, for the transport of goods, and thus, the Cruzin Cooler cannot be classified in heading 8704, HTSUS, either. Therefore, the Cruzin Cooler can be classified in heading 8711, HTSUS.
Overall, in light of ENs 87.03, 87.04, and 87.11 and the foregoing analysis, the Cruzin Cooler is not the type of vehicle classifiable under headings 8703 or 8704. Rather, the Cruzin Cooler is classifiable under heading 8711, HTSUS. Specifically, the imported Cruzin Cooler is classifiable under subheading 8711.90.0000, HTSUSA, as “[m]otorcycles (including mopeds) and cycles fitted with an auxiliary motor, with or without side-cars; side-cars: [o]ther.”
HOLDING:
Pursuant to GRI 1, the Cruzin Cooler is classified under subheading 8711.90.0000, HTSUSA, as “[m]otorcycles (including mopeds) and cycles fitted with an auxiliary motor, with or without side-cars; side-cars: [o]ther.” The column one, rate of duty, is free.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division