CLA-2 CO:R:C:M 955231 DWS
District Director
U.S. Customs Service
423 Canal Street, Room: 245
New Orleans, LA 70130
RE: Protest No. 2002-93-101553; Hydraulic Transporter;
Works Trucks; Special Purpose Vehicle; Explanatory Notes
87.05(9), 87.04(3), and 87.09; HQ's 087028 and 952400;
8705.90.00; 8704.23.00; 9903.87.00
Dear District Director:
The following is our decision regarding the request for
further review of Protest No. 2002-93-101553 concerning your action
in classifying and assessing duty on a hydraulic transporter under
the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The imported vehicle is a Scheuerle Hydraulic Transporter
(Chassis No. 4153). It is a swivel-wheel, multi-wheeled heavy duty
industrial truck which consists of a cab-under-platform design.
The transporter, constructed to transport loads of great weight,
features infinitely variable steering at transversal drive and an
electronic control for raising or lowering platform level
adjustment. No dimensions or specifications are provided, however,
review of the photographs and brochure for this vehicle indicates
that it is constructed to transport extremely heavy loads. The
transporter is used in a barge transfer facility to receive a barge
from a specialized crane at the water site, and then move the barge
across the yard to the work shop for repairs. The transporter
never leaves the barge yard, and it is not designed for highway
use.
The merchandise was entered under subheading 8705.90.00,
HTSUS, as an other special purpose motor vehicle. The entry was
liquidated on September 3, 1993, under subheading 8704.23.00,
HTSUS, as a motor vehicle for the transport of goods, G.V.W.
exceeding 20 metric tons. Goods classifiable under this provision
are dutiable at 25 percent ad valorem by virtue of subheading
9903.87.00, HTSUS, in lieu of the duty rate for subheading
8704.23.00, HTSUS. The protest was timely filed on October 01,
1993.
The subheadings under consideration are as follows:
8705.90.00: [s]pecial purpose motor vehicles, other than
those principally designed for the transport
of persons or goods (for example, wreckers,
mobile cranes, fire fighting vehicles,
concrete mixers, road sweepers, spraying
vehicles, mobile workshops, mobile
radiological units.
The general, column one rate of duty for goods classifiable
under this provision is 3.7 percent ad valorem.
8704.23.00: [m]otor vehicles for the transport of goods:
[o]ther, with compression-ignition internal
combustion piston engine (diesel or semi-
diesel): [g].V.W. exceeding 20 metric tons.
The general, column one rate of duty for goods classifiable
under this provision is 8.5 percent ad valorem.
8709.19.00: [w]orks trucks, self-propelled, not fitted with
lifting or handling equipment, of the type used
in factories, warehouses, dock areas or airports
for short distance transport of goods . . . :
[v]ehicles: [o]ther.
Goods classifiable under this provision receive duty-free
treatment.
ISSUE:
Whether the hydraulic transporter is classifiable under
subheading 8705.90.00, HTSUS, as an other special purpose motor
vehicle, under subheading 8704.23.00, HTSUS, as a motor vehicle
for the transport of goods, G.V.W. exceeding 20 metric tons, or
under subheading 8709.19.00, HTSUS, as an other works truck.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance
with the General Rules of Interpretation (GRI's), taken in order.
GRI 1 provides that classification is determined according to the
terms of the headings and any relative section or chapter notes.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
utilized. The Explanatory Notes, although not dispositive, are to
be used to determine the proper interpretation of the HTSUS. 54
Fed. Reg. 35127, 35128 (August 23, 1989). Explanatory Note
87.05(9) (p. 1429) states that:
[t]his heading covers a range of motor vehicles, specially
constructed or adapted, equipped with various devices that
enable them to perform certain non-transport functions,
i.e., the primary purpose of a vehicle of this heading is
not the transport of persons or goods.
[t]he heading includes:
(1) - (8) xxx
(9) Lorries fitted with stacking mechanisms (i.e., with a
platform which moves on a vertical support and is
generally powered by the vehicle engine). But the
heading excludes self-loading motor vehicles equipped
with winches, elevating devices, etc., but which are
constructed essentially for the transport of goods
(heading 87.04).
In HQ 087028, dated August 13, 1990, a vacuum tank truck was
held to be classifiable under heading 8704, HTSUS. In precluding
the truck from classification under heading 8705, HTSUS, we stated
that:
[o]ur review of the [Explanatory Notes] leads to the
conclusion that vehicles of heading 8705 must possess
equipment designed to perform a specialized service or
services at the job site, with any transport function
clearly subsidiary.
The principal function of the subject hydraulic transporter
is as a transporter of barges for repair. It is our understanding
that the transporter has no other intended purpose. Therefore,
because the transporter is equipped with elevating devices and is
essentially for the transport of goods, in accordance with
Explanatory Note 87.05(9) and HQ 087028, it is not classifiable
under subheading 8705.90.00, HTSUS.
Explanatory Note 87.04 (3) (p. 1428) states that:
[t]his heading also covers:
(1) - (2) xxx
(3) Self-loading vehicles equipped with winches, elevating
devices, etc., but designed essentially for transport
purposes.
However, in part, Explanatory Note 87.09 states that:
[t]his heading covers a group of self-propelled vehicles of
the types used in factories, warehouses, dock areas or
airports for the short distance transport of various loads
(goods or containers) or, on railway station platforms, to
haul small trailers. . .
The main features common to the vehicles of this heading
which generally distinguish them from the vehicles of
heading . . . 87.04 may be summarised as follows:
(1) Their construction and, as a rule, their special design
features, make them unsuitable for the transport of
passengers or for the transport of goods by road or
other public ways.
(2) Their top speed when laden is generally not more than
30 to 35 km/h.
(3) Their turning radius is approximately equal to the
length of the vehicle itself.
Vehicles of this heading do not usually have a closed
driving cab, the accommodation for the driver often being
no more than a platform on which he stands to steer the
vehicle. Certain types may be equipped with a protective
frame, metal screen, etc., over the driver's seat. . .
Works trucks are self-propelled trucks for the transport of
goods which are fitted with, for example, a platform or
container (sometimes designed for elevating) on which the
goods are loaded.
In HQ 952400, dated February 9, 1993, we dealt with
classification of industrial trucks under the HTSUS. In
classifying the trucks under heading 8709 as works trucks, we
stated that:
[t]he very heavy weights of the loads the trucks are
designed to carry, considered in addition to the weights
of the vehicles themselves, could not or would not normally
be carried by road or other public ways. The trucks must be
used on surfaces and in areas which are amenable to the
operation of large trucks with very heavy loads. The
maximum speeds when laden and the turning radius' of the
trucks are well within the ranges commonly associated with
trucks designed for the short distance transport of goods
within factories and other industrial sites.
[t]he trucks do not have all the features commonly
associated with heading 8709 works trucks (e.g., open
driving cab). However, considering all the features of the
trucks, including those described above, it is Customs
position that the trucks are properly described as works
trucks . . .
As with the industrial trucks in HQ 952400, it is our position
that the subject hydraulic transporter is classifiable under
subheading 8709.19.00, HTSUS, as a works trucks. It does not have
an open cab, but it does possess the features common to the trucks
in heading 8709, HTSUS. The transporter is not used for highway
use, it moves at a slow pace, it possesses an elevating platform,
and, as it is designed for transporting barges, it is used to carry
very heavy loads.
Therefore, because the hydraulic transporter is specifically
classifiable under heading 8709, HTSUS, it is our position that it
is distinguishable from the vehicles of heading 8704, HTSUS.
HOLDING:
The hydraulic transporter is classifiable under subheading
8709.19.00, HTSUS, as an other works truck.
Because reclassification of the merchandise as indicated above
will result in a lower rate of duty than claimed, you are
instructed to allow the protest in full.
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest Directive,
this decision, together with the Customs Form 19, should be mailed
by your office to the protestant no later than 60 days from the
date of this letter. Any reliquidation of the entry in accordance
with the decision must be accomplished prior to mailing of the 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, Lexis, Freedom of Information Act, and other public access
channels.
Sincerely,
John Durant, Director