HQ 958712: Internal Advice; Motorized Stair Climbing Exercise Apparatus with Electronic Monitors; Stair Stepper; U.S. Note 1, Subchapter V, Section XXII

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 958712

                          March 25, 1996

CLA-2 RR:TC:MM 958712  RFA

CATEGORY:  Classification

TARIFF NO.: 9506.91.00, 9905.95.04

Port Director 
U.S. Customs Service
35 West Service Road
Champlain, NY  12919 

RE:  Internal Advice; Motorized Stair Climbing Exercise Apparatus
     with Electronic Monitors; Stair Stepper; U.S. Note 1,
     Subchapter V, Section XXII

Dear Port Director: 

     This is in reply to your memorandum of November 8, 1995
(CLA-2-95:R: N7:224), requesting our comments concerning an
internal advice request submitted by counsel on behalf of
Bodyguard Fitness Corporation, involving the tariff
classification of exercise apparatus under the Harmonized Tariff
Schedule of the United States (HTSUS).

FACTS:

     The merchandise consists of a Bodyguard stair climbing
exercise equipment with an electronic monitor (also known as a
stair stepper), made in Canada.  The stair climbing apparatus
contains an "Eddy Current Resistance System", sometimes referred
to as an inverse linear motor or an electromagnetic motor.  The
electromagnetic motor produces the braking resistance during the
operation of the stair climbing apparatus.  This motor contains 5
series field poles in place, each with the denoted polarity. 
These field poles form the magnetic circuit parts of the motor. 
The stair stepper converts electrical energy into mechanical
energy through the operation of magnetic resistance applied to
the motor's flywheel drive.  The motor acts as a source of
mechanical energy that imparts motion to the stair climbing
apparatus, and also acts as the mechanical resistance to the
user's efforts. 

ISSUE:

     Are the stair climbing exercise apparatus "motorized" for
the purposes of duty reduction eligibility under subheading
9905.95.04, HTSUS?

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's).  GRI
1 provides that classification shall be determined according to
the terms of the headings and any relative section or chapter
notes.

     There is no dispute that the stair climbing apparatus is
classifiable under subheading 9506.91.00, HTSUS, which provides
for: "[a]rticles and equipment for general physical exercise,
gymnastics, athletics, other sports (including table-tennis) or
outdoor games, not specified or included elsewhere in this
chapter. . . : [o]ther: [a]rticles and equipment for general
physical exercise, gymnastics or athletics. . . ."  This
provision is subject to U.S. Note 1, Subchapter V, Section XXII,
HTSUS, which states that: 

          This subchapter contains the temporary
     modifications of the provisions of the tariff schedule
     established pursuant to the North American Free Trade
     Agreement.  Unless the context otherwise requires,
     goods originating in the territory of Canada described
     in the provisions of this subchapter, for which a rate
     of duty followed by the symbol "(CA)" is herein
     provided, are subject to duty at the rate set forth in
     lieu of the rate provided therefor in chapters 1
     through 98.  No other preferential tariff treatment
     provided under general note 3(c) to the tariff schedule
     shall be afforded under the provisions of this
     subchapter.  Unless otherwise provided, the provisions
     and notes of this subchapter are effective as to such
     goods, under general note 3(c)(vii) to the tariff
     schedule, through the close of December 31, 1998, on
     which date this subchapter shall be deleted from the
     tariff schedule and shall cease to apply to any goods
     entered after that date.

     Subheading 9905.95.04, HTSUS, provides for: "[g]oods of
Canada, under the terms of general note 12 of the tariff
schedule: [m]otorized stair climbing exercise apparatus equipped
with electronic monitors (provided for in subheading
9506.91.00)", shall have a duty rate of free.  

     The issue is whether the stair climbing apparatus,
containing an inverse linear motor, was "motorized" as required
by subheading 9905.95.04, HTSUS.  The port believes that it is
not "motorized" because: it is not an electric motor; and that
the linear motor is no more than an electromagnetic brake.  

     The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) constitute the official interpretation of
the HTSUS.  While not legally binding or dispositive, the ENs
provide a commentary on the scope of each heading of the HTSUS
and are generally indicative of the proper interpretation of
these headings. See T.D. 89-80, 54 FR 35127, 35128 (August 23,
1989).  The term "motorized" is not defined anywhere in the HTSUS
or ENs. 

     In Rico Import Co. v. United States, Slip Op. 92-146, dated
August 27, 1992, the court stated that "[i]t is well settled that
tariff acts must be construed to carry out the intent of the
legislature." See Nippon Kogaku (USA), Inc. v. United States, 69
CCPA 89, 92, 673 F.2d 380, 382 (1982)(citing Sandoz Chem. Works,
Inc. v. United States, 43 CCPA 152, 156, C.A.D. 623 (1956)).  The
first place to look to establish the intent of Congress is the
language of the statute itself. Consumer Prod. Safety Comm'n v.
GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).  The court may
resolve ambiguities in the plain language of a statute by
resorting to legislative history and other extrinsic sources.
Sandoz Chem. Works, 43 CCPA at 156.

     A tariff term that is not defined in the HTSUS or in the
EN's is construed in accordance with its common and commercial
meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89,
673 F.2d 380 (1982).  Common and commercial meaning may be
determined by consulting dictionaries, lexicons, scientific
authorities and other reliable sources. C.J. Tower & Sons v.
United States, 69 CCPA 128, 673 F.2d 1268 (1982).  The following
are definitions of the term "motor": 

     1. A device, as a machine or engine, that imparts or
     generates motion. 2. A device that converts a form of
     energy into mechanical energy, esp. an internal-combustion engin or an arrangement of coils and magnets
     that converts electric current into mechanical power. 
     3. A motorized conveyance, esp. a car.  Webster's New
     Riverside Dictionary 

     Something that imparts motion, especially a contrivance
     as a steam engine which receives and modifies energy
     from some natural source in order to utilize it in
     driving machinery. The Random House College Dictionary,
     Revised Edition 

     The stair stepper contains an inverse linear motor
containing 5 series field poles in place, each with the denoted
polarity.  These field poles form the magnetic circuit parts of
the motor.   The stair stepper converts electrical energy into
mechanical energy through the operation of magnetic resistance
applied to the motor's flywheel drive.  The motor then, is a
source of mechanical energy that imparts motion to the stair
climbing apparatus and also the mechanical resistance to the
user's efforts.  Based upon the above information, we believe
that the subject stair stepper is "motorized" for the purposes of
subheading 9905.95.04, HTSUS, and therefore eligible for duty-free tariff treatment.    

HOLDING:

     The stair climbing apparatus is classifiable under
subheading 9506.91.00, HTSUS, which provides for: "[a]rticles and
equipment for general physical exercise, gymnastics, athletics,
other sports (including table-tennis) or outdoor games, not
specified or included elsewhere in this chapter. . . : [o]ther:
[a]rticles and equipment for general physical exercise,
gymnastics or athletics. . . ."  The column one, general rate of
duty is 4.6 percent ad valorem.   Because the subject merchandise
is "motorized", it is eligible for duty-free tariff treatment
under subheading 9905.95.04, HTSUS. 

     Please advise the internal advice applicant of this
decision.  Sixty days from the date of the decision the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and the public via the Diskette Subscription Service, Freedom
of Information Act and other public access channels.

                              Sincerely,



                              John Durant, Director
                              Tariff Classification Appeals
Division

cc:  NIS Division,  New York