CLA-2-87:OT:RR:NC:N2:201

David Trumbull
Agathon Associates
6 Beacon Street
Boston, MA 02108

RE: The tariff classification of electric bicycles from China

Dear Mr. Trumbull:

In your letter dated September 23, 2020, you requested a tariff classification ruling on behalf of your client, Fifield Electric Bicycles, located in Higham, Massachusetts.

The items under consideration have been identified as five (5) styles of electric bicycle.

In order to classify the following vehicles it is helpful to clarify the types of drive systems equipped on the subject vehicles.

“Self-propelled” is defined as, “impelled or driven onwards without external agency or intervention; spec. (of a vehicle, machine, etc.) that moves under its own power, motorized.” In this case, the electric bicycle is capable of movement via the electric motor without the use of the pedals.

Pedal assist, also known as “pedelec,” is defined as “a bicycle with an electric motor that helps the rider turn the pedals.” In this case, when the rider stops pedaling the motor disengages and the bicycle coasts.

The first model has been identified as the “Jetty 4.0”, powered by a 350W rear drive brushless motor. It is capable of a maximum speed of 20 mph, with a range of 30-45 miles. The Jetty is capable of self-propulsion with both a throttle and a pedal assist system.

The second model has been identified as the “Seaside”, powered by a 350W rear drive brushless motor. It is capable of a maximum speed of 20 mph, with a range of 30-50 miles. The Seaside is capable of self-propulsion with both a throttle and a pedal assist system.

The third model has been identified as the “Rogue Wave”, powered by a 750W rear drive brushless motor. It is capable of a maximum speed of 20 mph, with a range of 30-40 miles. As per the information provided in your email on September 24, 2020, the Rogue Wave is not capable of self-propulsion. It only operates only as a pedal assist where the electric motor only assists the rider in propelling the bicycle.

The fourth model has been identified as the “Bonfire 500”, powered by a 500W brushless motor. You did not specify the maximum speed or range was for this particular model. The Bonfire 500 is capable of self-propulsion with both a throttle and a pedal assist system.

The fifth model has been identified as the “Bonfire 350”, powered by a 350W brushless motor. You did not specify the maximum speed or range was for this particular model. As per the information provided in your email of September 24, 2020, the Bonfire 350 is not capable of self-propulsion. It only operates only as a pedal assist where the electric motor only assists the rider in propelling the bicycle.

The applicable subheading for the Jetty 4.0, Seaside, Rogue Wave, Bonfire 500, and Bonfire 350 will be 8711.60.0090, Harmonized Tariff Schedule of the United States (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.

This office will provide guidance as to whether these electric bicycles will 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)

The product description specifically described “motorcycles” with electric power less than or equal to 1,000 Watts. According to the information you provided, the subject electric bicycles meet the power rating limitation.

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:

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.”

Given that the ENs do not specify vehicles by type in relation to the HTSUS subheading levels, it is our opinion that the product description provided in exclusion number 86 would cover all forms of self-propelled “motorcycles” and therefore exclude some of the subject merchandise from the increased duties imposed by subheading 9903.88.02.

Please note that the Rogue Wave and Bonfire 350 have been described as being “pedal assist” only and not capable of self-propulsion without the rider using the pedals to activate the electric motor. Pedal assist are classified in the same HTS subheading, but are not considered electric “motorcycles” because they are unable to propel themselves without rider intervention. The Rogue Wave and Bonfire 350 are subject to the 301 duties and must be reported under 9903.88.02

The Jetty 4.0, Seaside, and Bonfire 500, in addition to pedal assist, are self-propelled, and therefore eligible for the exclusion from the additional duties imposed by subheading 9903.88.02 per Note 20(v) to Subchapter III, Chapter 99, and HTSUS. The Jetty 4.0, Seaside, and Bonfire 500 can be entered under subheading 9903.88.17.

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