CLA-2-87:OT:RR:NC:N2:201
David Kim
Direct CHB
20275 Business Parkway
City of Industry, CA 91789
RE: The tariff classification of an electric go-cart and self-balancing hoverboard from China
Dear Mr. Kim:
In your letter dated May 7, 2021 you requested a tariff classification ruling on behalf of your client, Segway Inc., located in Alhambra, California.
The items under consideration have been identified as the Ninebot Gokart Pro and the Ninebot S-Max.
The Ninebot GoKart Pro is approximately 55.9 × 33.5 × 23.6 inches and weighs approximately 113 lbs. It can carry a single passenger up to 220 lbs. The Ninebot Gokart Pro is equipped with a single seat, a seat belt, a steering wheel with column, a tubular frame, bumper, front wheels, electric connection plugs, pedals, headlight, speaker, rear spoiler, assembly tools and a user manual. It is powered by 2 x 500-Watt electric motors. You state that the Ninebot Gokart Pro has various “modes” for speed: “ECO mode”, max. speed: 5 mph; “STRADA mode”, max. speed: 11 mph; “SPORT mode”, max. speed: 17.4 mph; and “CORSA mode” max. speed: 23 mph. The included manual states that it can travel up to 15.5 miles on a single charge.
The Ninebot S-Max is a two-wheeled self-balancing hoverboard which serves as the rear drive motors of the Ninebot GoKart Pro that is capable of being detached from the main body and can be used independently from the go-kart body. The S-Max weighs 46.3 lbs. has a maximum carry capacity of 137.4 lbs., a maximum speed of 12.4 mph and an approximate range of 23.6 miles on a single charge. You state that the Ninebot is powered by a lithium rechargeable battery. These two (2) items, designed to be connected and used together, form a composite good, with the Segway hoverboard establishing the essential character of the whole.
You suggest classification of the Ninebot Gokart Pro under 9503.00.0090, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Tricycles, scooters, pedal cars and similar wheeled toys…dolls, other toys…puzzles of all kinds; parts and accessories thereof…Other.” However, based on our review of the information provided, this office is of the opinion that the Ninebot GoKart PRO, is not a wheeled toy classifiable in heading 9503. Use of the product requires training and acquired skill to fully utilize the item. It also involves a meaningful risk of injury and lacks any assistive devices. The product information suggests that it is not suitable for operation by children under age 14 and recommends parental supervision for users under the age of 16. We also note that the product can reach speeds of up to 23 mph and requires balance and advanced motor skills for safe operation. Therefore, the item lacks the characteristics associated with the classification as a wheeled toy in Chapter 95.
In addition, while reviewing the marketing and product specifications for the Ninebot GoKart PRO, it appears that the product, although described as “entertainment equipment”, is principally designed, marketed, and used in go cart racing. It can be configured as a Detachable Self-Balancing Transporter. As detailed in the product manual, the Ninebot GoKart PRO can be configured to function as a Detachable Self-Balancing Transporter and a self-balancing vehicle when separated from the go cart frame.
As noted above, we find that the instant product is distinguishable from the electric go cart described in ruling N305735, classified in 9503.00.0073, HTSUS. In our view, the product is similar in form and function to the articles classifiable in NY N267801 and NY M83267.
The CIT has opined on the interpretation of the wheeled toy provisions in 9503, HTSUS, in its decision in the Streetsurfing case. Noting that heading 9503, HTSUS, does not cover every item with wheels that is principally used for amusement. The court applied the ENs to the subject wave boards at issue there and held that a wheeled toy under heading 9503 is characterized by the following features: (1) the absence of a training requirement prior to its use; (2) the absence of a meaningful risk of injury involved in its use; (3) the lack of acquired skill to fully utilize the item; (4) the lack of exercise or athletic aspect in the item’s use; and (5) the presence of an assistive device.
The applicable subheading for the Ninebot Gokart Pro and the Ninebot S-Max will be 8711.60.0090, 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: Other”. The rate of duty will be Free.
There is a question as to whether this hoverboard would be subject to additional duties under Section 301. 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.
On September 27, 2019, the Office of US Trade Representative (USTR), announced the Section 301 Tariffs exemption list. A new HTSUS note 20(v) to subchapter III of chapter 99, 9903.88.17 was implemented. As set out in the Annex to the Federal Register (FR) notice, product exclusions were reflected in the specially prepared product descriptions, which included:
(86) Motorcycles with electric power for propulsion, each of a power not exceeding 1,000 W (described in statistical reporting numbers 8711.60.0050 or 8711.60.0090)
Although the term “motorcycles” is not defined in the HTSUS, the terms of heading 8711 suggest a broad range of vehicles that include “motor-scooters”, “mopeds”, and other similar vehicles that are not “conventional” motorcycles (i.e., vehicles where the driver is seated). When tariff terms are not defined by the HTSUS or the Explanatory Notes (ENs), they are construed with their common and commercial meaning. According to common definitions available at Automotivedictionary.org and Motorera.com, a “motorcycle” is “a two wheeled motorized vehicle where the two wheels are not side-by-side but in line.”
Additionally, the ENs to heading 8711 suggest there is no need to further differentiate between conventional and non-conventional types of “motorcycles.” They state:
This heading also covers two-wheeled, electrically powered transportation devices, designed for carrying a single person, for use within low-speed areas such as pavements (sidewalks), paths, and bicycle lanes. Their technology allows the rider to stand upright while a system composed of gyroscope sensors and multiple onboard microprocessors maintains both the device’s and rider’s balance on two independent, non-tandem wheels.
Motorcycles of this heading, which are propelled by one or more electric motors, are known as “Electric Motorcycles”. These motorcycles incorporate an electric accumulator pack supplying power to the electric motors. The electric accumulators of these “plug-in” type motorcycles can be recharged by plugging them into an electrical power grid outlet or charging station.”
As the subject merchandise is equipped with side-by-side rather than inline wheels it is the opinion of this office that the Ninebot S-Max does not qualify for the exclusion from the additional duties imposed by subheading 9903.88.02 per Note 20(v) to Subchapter III, Chapter 99, HTSUS, and therefore must also be entered under that subheading.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 8711.60.0090, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of 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.
The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively.
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.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Matthew Sullivan at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division