United States v. Westfield Manufacturing Co.

MaRtin, Judge, delivered the opinion of the court: This is an appeal from the judgment of the United States Customs Court, Second Division, C.D. 2232, on a protest by appel-lee, an American manufacturer of bicycles, against the collector’s assessment of duty on certain bicycles at the rate of 11% per centum ad valorem. The protest was brought pursuant to section 516(b) of the Tariff Act of 1930, as amended. The assessment was made on the basis that the imported bicycles come within that provision of paragraph 371 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802, supplemented by Presidential Proclamation 3108, 90 Treas. Dec. 285, T.D. 53883,2 which reads as follows: Bicycles with or without tires, having wheels in diameter (measured to the outer circumference of the tire) : Over 26 inches: If weighing less than 36 pounds complete without accessories and not designed for use with tires having a cross-sectional diameter exceeding 1% inches_$1.87% each, but not less than 11%% nor more than 22%% ad val. The same paragraph further provides that other bicycles with a wheel diameter over 25 inches, including those exceeding 36 pounds in weight, are dutiable at $3.75 each, but not less than 22%%, nor more than 30% ad valorem. Appellee’s protest is on the basis that the imported bicycle should be assessed at the rate of 22%% because it weighs over 36 pounds when weighed with the luggage carrier, kickstand, and lighting unit included therewith. [98] It is shown by the record that the United States Customs Examiner who passed the entry found the net weight of the imported bicycle, without the front carrier, kickstand and lighting unit, to be 331/2 pounds while its net weight, including these items, exceeded 36 pounds. The examiner made no determination of the weights of the carrier, kickstand, and lighting unit individually. The Customs Court ruled on the protest as follows: * * *, we hold that lighting sets and kickstands are parts of bicycles, the weight of which must be taken into consideration in ascertaining their weight, “complete without accessories,” within the purview of paragraph 371 of the Tariff Act of 1930 as modified, supra, and that luggage carriers are accessories to be excluded from that calculation. The claim of the plaintiff is sustained to the extent indicated. In all other respects and as to all other merchandise, all other claims are overruled. Both the party in interest and the Government seek review of the Customs Court decision, contending that the kickstands and lighting sets should not be included in the weight of the bicycles. No appeal was taken by the appellee from the ruling, adverse to it, that the luggage carriers are accessories to be excluded from that weight. Thus, only the status of the kickstands and the lighting sets is in issue here. Appellants urge that the principle applicable to determine whether an item is a part or an accessory of the parent article is as follows: * * * wben tbe item as applied in its intended purpose or ultimate use on the parent article is then essential to the operation of the parent article in the usual manner, the item is a part. If, conversely, when the item is applied in its ultimate use on the parent article, that, parent article can still function in its usual manner without the item, the item is an accessory. They contend that kickstands are accessories under the principle set forth because it is clear that they are used only when a bicycle is not being operated and that bicycles operate efficiently without them. According to appellants, evidence in the record that kickstands are listed in catalogs as accessories and some bicycles are sold without kickstands further indicate that such items are accessories. In support of the contention that lighting sets are accessories, appellants refer to evidence that, in the United States, most bicycles are used by children who are not allowed to ride at night. They assert that, for that reason, these items are not essential to the usual functioning of a bicycle and the existence of state statutes requiring bicycles to be equipped with lighting sets when ridden at night are not relevant to the issue here. The Government contends that the intention of the negotiators of the General Agreement on Tariffs and Trade (GATT), by which paragraph 371 was modified, was that lighting sets and kickstands be excluded in arriving at the net weight of bicycles for purposes of classification within that paragraph. In support of that contention, it [99] refers in its brief to items in the digest of data furnished the President and the negotiators of GATT. We have examined the cited items of the digest in the light of the Government’s arguments and note that they indicate that children favor having their bicycles fitted with various accessories while adults prefer to have their bicycles as light as possible, and that they use the term “accessories” in connection with lamps. However, the fact that the information in these items was before the negotiators does not impress us as being of any substantial significance as an indication that the negotiators intended that lighting sets and kickstands should be excluded by the term “complete without accessories.” Obviously the resolution of the other issues presented here cannot be predicated only on the significance of the articles in contributing to the mere functioning of the device as a bicycle. If this were the only criterion many articles would be adjudged accessories whereas under previous decisions of this court, they should be considered parts. Recently, in Trans Atlantic Company v. United States, 48 CCPA 30, C.A.D. 758, we had occasion to review the law with reference to whether an item was a “part” of a device. The facts there involved the question of whether the imported brackets for mounting door closers were “parts.” The conclusions drawn from the previous cases are pertinent to this discussion. We said: In all of these eases, as in the present ease, there was an option on the part of the purchaser of the article to use it either with or without the imported auxiliary devices. When the purchaser elected to use the article with such auxiliary devices, the devices were held in each case to be parts of the article for which they were designed and intended for use. In all these cases the articles could have teen used loithout the imported auxiliary device. In these cases the court considered the function of the auxiliary part when the purchaser elected to use it as a part of the article mid did not consider it determinative that the article could function without the auxiliary part. [Emphasis added.] It appears to us a more realistic criterion in the present situation would include several other factors, any one of which or all could be significant in determining the issues, such as the demand of the purchasing public for the items, their contribution to the safety and convenience of the rider in the reasonable and normal operation of a bicycle and the extent the items afford an unlimited use of a bicycle. Insofar as the kickstands are concerned, the record shows that nearly all bicycles, except racing bicycles and bicycles with training wheels, are sold in this country with these items attached. Besides this factor, there are others which convince us that the kickstands are “parts” of bicycles. The opinion of the Customs Court adequately expresses our views in this connection and therefore we quote the portion thereof: Turning now to tbe question of the kickstands, we observe that we are confronted with a device which functions, not in the operation of the bicycle, but only when it is not in use. The record shows that a kickstand serves to keep [100] the 'bicycle erect and in place when it is not moving, to prevent it from being damaged. Obviously, then, the mobility of a bicycle is not impeded by the absence of a kickstand, nor is a kickstand necessary to make it go. But a bicycle is an unwieldy mechanism which can not stand of its own accord. It is a matter of common knowledge that without some form of parking device, when a bicycle is not in use, it must either be rested against an upright structure or left lying upon its side. The location of the former depends on chance; resort to the latter may occasion damage to the vehicle and inconvenience to both the rider and public. It would seem, therefore, that if a bicycle is to be operated properly, efficiently, and in its ordinary manner, it must be provided with a means for keeping it erect and free from damage. Kickstands are the devices which supply that need. We are, therefore, of the opinion that kickstands are so intimately connected with the use of bicycles as to be essential to their completeness, and properly to be considered, for tariff purposes, parts of bicycles. Although, the record reflects that the lamps and generators are not in great demand, they do provide the rider of a bicycle in darkness with a safety device which is not otherwise available. The use of the bicycle in the dark without some form of illumination would be dangerous and, in most states, illegal. Therefore, without an illuminating device, the bicycle is limited to daytime use. Of course, if the owner wanted only to ride the bicycle during bright daylight, illumination would be unnecessary but if he does wish to ride at night or during a dark foggy day, he cannot do so without illumination. This situation is much like that in the Trans Atlantic case. There, the door brackets were unnecessary if the door closers were to be installed in one position but if they were to be installed in another, the brackets were necessary. In other words, we held the brackets to be “parts” because without them the mounting of the door closers would be limited to one position. The party in interest argues, as we previously noted, that since children between five and fourteen years of age are the chief users of bicycles in this country and they are not permitted to ride them after dark, the imported lamps are unnecessary equipment and therefore accessories. We do not agree with this contention. The significant factor is that these lamps and generators are capable of providing the necessary illumination for night bicycle riders and without illumination the bicycle cannot be ridden. Our conclusion in the Trans Atlantic case was not based upon how widely the imported brackets were used but upon the' utility of the brackets when used. We believe these lamps and generators provide the rider with limitless use of his bicycle as a bicycle insofar as day and night usage is concerned and, therefore, must be considered “parts” of a bicycle. On the basis of this record and for the above reasons we affirm, the judgment of the Customs Court. Footnotes [2] In United States v. Schmidt, Pritchard and Co., Mangano Cycles Co., 47 CCPA 152, C.A.D. 750, this court affirmed a judgment of the Customs Court holding the rate change effected by T.D. 53883 for bicycles of this class to be invalid. T.D. 55328 (1961) apparently supersedes T.D. 53883.