tariff purposes, and where they perform a useful function when attached to standard bicycles or motorbikes (a type of bicycle with a small auxiliary motor), and contribute to their safe, proper, and efficient operation, and where the record fails to establish any significant alternative uses for them, held the presumption that they are dedicated to use on bicycles inherent in the collector's classification has not been overcome. United States Customs Court, Second Division Protests 63/13826, 63/18658, and 63/21207 against the decision of the collector of customs at the port of Philadelphia [Judgment for defendant.] (Decided December 9, 1968) Tompkins & Tompkins (Allerton deC. Tompkins of counsel) for the plaintiff. Edwin L. Weisl, Jr., Assistant Attorney General (Charles P. Deem and Bernard J. Babb, trial attorneys), for the defendant. Before RAO and FORD, Judges RAO, Chief Judge: The merchandise covered by the protests presently before the court, which have been severed from the protests originally consolidated for trial, consists of "Vindec" generators or "Vindec" generator sets imported from Japan and entered at the port of Philadelphia. The merchandise was assessed with duty at 30 per centum ad valorem under 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, as parts of bicycles. While various claims were made in the protests, the ones now relied upon are that the merchandise is properly dutiable under paragraph 353 of said tariff act, as modified by said General Agreement on Tariffs and Trade, at 15 per centum ad valorem, as articles suitable for producing, rectifying, modifying, controlling, or distributing electrical energy, or under said paragraph, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T.D. 52739, or by Presidential Proclamation No. 3468, 97 Treas. Dec. 157, T.D. 55615, and Presidential Proclamation No. 3479, 97 Treas. Dec. 430, T.D. 55649, as articles having as an essential feature an electrical element or device, at 1334 per centum ad valorem or 122 per centum ad valorem, depending on the respective dates of entry. The pertinent provisions of said tariff act, as modified, are as follows: Paragraph 371 of the Tariff Act of 1930, as modified by T.D. 51802: Parts of bicycles, not including tires: Paragraph 353 of the Tariff Act of 1930, as modified by T.D. 51802: Articles suitable for producing, rectifying, modifying, controlling, or distributing electrical en ergy ***。 Other articles (except machines for determin- 15% ad val. Paragraph 353 of the Tariff Act of 1930, as modified by T.D. 52739: Articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs, finished or unfinished, wholly or in chief value of metal, and not specially provided for: This rate was reduced to 1212 per centum ad valorem by T.D. 55615 and T.D. 55649. It has been stipulated that the merchandise involved herein is in chief value of metal. Plaintiff called four witnesses, who had had the following trade experience: Dr. Ernst Reyersbach, president and general manager of Victoria Distributors, Inc., the plaintiff herein, and a partner of the predecessor company, testified that these firms have been engaged in the importation of bicycles, bicycle parts, and accessories, and that he has been engaged in that line of business since 1933. He was familiar with the generator sets involved herein and how they operated. Mr. Ray Wayne, sales manager of Oxford International Corp., testified that he had been selling bicycle accessories all over the United States for 22 years, and that he was familiar with the generator sets involved herein and has sold them in the Middle West for about 7 years. Mr. Arthur Lipski, president and general manager of Oxford International Corp., testified that his company is engaged in the importation and sale of bicycle parts, accessories, and sundry parts and that he has sold such items throughout the United States for over 20 years. His firm had sold thousands of generator sets all over the United States for about 10 years. Mr. Salvatore DiGaetano, vice president in charge of sales, and general manager of F. A. Baker Company, Inc., stated that the business of that company was the wholesale distribution of bicycle parts, accessories, and sundry items. He has been in that line of business for 35 years and has sold thousands of generator sets from Maine to Virginia. Defendant called Mr. Frederick Herbst, president and general manager of Herbst Brothers Motormarine, Inc., since 1956. His firm is engaged in retailing, wholesaling, and distributing motor scooters and Mopeds, and has dealt in practically all varieties of small motorized vehicles. At the trial there was received in evidence as exhibit 1 a sample of the merchandise described on the invoice as " "VINDEC' Generator Sets Single Bulb type, with S type Bracket, 6v-3w". It consists of a dynamo, a headlight, a taillight, and two cables. According to Dr. Reyersbach, the merchandise described as ""VINDEC' Generators with S type Bracket 6v-3w, Double Bulb type" differs only in that it has two bulbs instead of one and has a switch to operate either the lower beam or the upper beam. Dr. Reyersbach described how these items operate as follows: There is a dynamo which is tilted against the wheel, and through the motion of the wheel creates the electricity which is guided through a lead wire into the headlight and into the taillight. If it is a one-bulb light there is a direct connection to the one bulb and it lights up as soon as the bike is in motion. If it is a two-bulb there is a switch on the top of the light which will either turn on-it's an on and off switch and it will turn on either the lower beam or the upper beam. There is also a wire going from the generator to the taillight, which is directly connected. According to the witness when the generator is turned to the "on" position, it lights both the headlight and the taillight. In the two-bulb arrangement, one of the bulbs is lighted at a time. When the dynamo is against the front wheel or the rear wheel of a bicycle, and the bicycle is ridden, electricity is produced which turns on the lights. The lights go out when the rider stops turning the generator. The record indicates that these generating sets are sold to bicycle dealers, bicycle accessory dealers, jobbers and stores, mail-order houses, chain stores, hardware distributors and stores, and sporting goods stores. They are not sold as original equipment to bicycle manufacturers. Dr. Reyersbach testified that the trade draws a distinction between bicycle parts and bicycle accessories. The components essential to move a bicycle are parts, he said, but the ornamental items are accessories. He regarded the following as parts: Cranks, pedals, handles, handlebars, chains, coaster brakes, tires, tubes, and spokes. Accessories include baskets or carriers, bells, horns, lights, speedometers, flags, perhaps chain guards, fox tails, streamers. He included generator sets among accessories on the ground that they are not needed to operate a bicycle. Plaintiff's other witnesses were in agreement as to the trade distinction between parts and accessories. Mr. Wayne named as parts cranks, spokes, wheels, rims, rear hubs, and front hubs. He considered as accessories lights, horns, generator sets, baskets, streamers, high-riser bars. He regarded generator sets as optional equipment because a light is not required if a bicycle or a motor scooter is not used at night. Mr. Lipski considered as accessories, optional equipment, such as generator sets, streamers, baskets, lights, seat covers, tool boxes, pumps, and any items not essential to the riding of the bicycle. He said that the essential components of a basic or standard bicycle are wheels, spokes, brakes, chains, handlebars, seats-that is, those parts which are necessary for riding a bicycle. He definitely regarded the articles before the court as accessories. While he thought that a light would be a safety feature if one were riding a bicycle at night, he said that most bicycles are not used at night. Mr. DiGaetano said the component parts of a standard bicycle are the frame, wheels, tires, tubes, handlebars, saddles, seat posts, pedals, fenders. Accessories are anything that can be added, such as baskets, horns, lamps, seat covers, streamers, pedal blocks, handlebar struts, carriers. Such accessories are optional equipment. It is clear from the record that the trade makes a distinction between accessories and parts of bicycles and regards items outside the basic or standard bicycle as optional equipment or accessories. However, as we have pointed out in Victoria Distributors, Inc. v. United States, 61 Cust. Ct. 364, C.D. 3634 (protest 63/18656), that is not necessarily decisive of the issue since the fact that an article is optional equipment does not preclude its classification as a part, depending on its nature, function, and purpose in relation to the article to which it is attached or is designed to serve. Trans Atlantic Company v. United States, 48 CCPA 30, C.A.D. 758; Gallagher & Ascher Company v. United States, 52 CCPA 11, C.A.D. 849; United States v. Antonio Pompeo, 43 CCPA 9, C.A.D. 602. In Victoria Distributors, Inc. v. United States, supra, to which reference has been made, we examined the judicial decisions involving bicycle and automobile lamps, bells, and horns, and concluded that horns and lights are presently considered necessary to the safe, proper, and efficient operation of bicycles and that where the particular horns or lights involved are dedicated to use with bicycles, they are dutiable under paragraph 371, as parts of bicycles. The merchandise in Eric Wedemeyer v. United States, 7 Cust. Ct. 141, C.D. 556, consisted of lamps with accompanying electric gener ators. The witness testified that they were sold as units and were used as illuminating lights for bicycles operated at night; that they were attached by a special clamp to the front wheel of the bicycle, and that the clamp could be attached to any oval shaped object. They were held dutiable as parts of bicycles. In United States (Korlis Ltd., Party in Interest) v. The Westfield Manufacturing Company, 49 CCPA 96, C.A.D. 803, the issue was whether certain items were accessories within the meaning of a modification of paragraph 371 of the Tariff Act of 1930 which assessed a particular rate of duty on bicycles "If weighing less than 36 pounds complete without accessories". The court held that lamps and generators, among other things, were parts of bicycles. The court stated (p. 100): 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 to only 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. The 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. A sample of the lamp and generator set in that case is still in the custody of the court. We have compared it with exhibit 1 herein and find that it is very similar, differing primarily in being a little larger. It thus appears that the within merchandise is of the same type as has previously been held to be parts of bicycles for tariff purposes. The remaining issue is whether plaintiff has established that the particular articles before the court are not dedicated to use with bicycles. |