CLA-2 RR:CR:GC 965246 JAS
Mr. Harvey B. Fox
Adduci, Mastriani & Schaumberg, L.L.P.
1200 Seventeenth Street, N.W.
Washington, D.C. 20036
RE: Micro Truk; NY F82672 Revoked
Dear Mr. Fox:
This is in response to your letter of October 16, 2000, on behalf of Metro Motors Corporation, requesting reconsideration of NY F82672, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of the Micro Truk. In this ruling, which the Director of Customs National Commodity Specialist Division, New York, issued to Metro Motors on February 11, 2000, the Micro Truk was held to be classifiable as a motor vehicle for the transport of goods, in subheading 8704.31.00, HTSUS.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY F82672 was published on September 26, 2001, in the Customs Bulletin, Volume 35, Number 39. No comments were received in response to that notice.
FACTS:
The Micro Truck was described in the cited ruling as having a cab for two people and a rear cargo bed with fold down sides and tailgate. It is available as a 130-inch Standard Bed, model 1010, or a 145-inch Long Bed, model 1020. The vehicle is powered by a 38 hp, gasoline powered spark ignition internal combustion engine, and has a 3-speed manual transmission
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and 4-wheel hydraulic brakes. Design features include front bumper, headlights, taillights, brake lights and turn signals, and four-way flashers. The Micro Truk is equipped with two-speed intermittent wipers with washer, heater/defroster, inside/outside rearview mirrors, seat belts and dome light.
The Micro Truk is capable of a 25 mph maximum speed and is not advertised for use on the public roads. The vehicle is advertised for use in landscaping, facility maintenance, security, i.e., police fire protection, food service delivery, and in athletic applications such as removing injured players from the field and moving around equipment and personnel.
The HTSUS provisions under consideration are as follows:
Motor vehicles for the transport of goods:
Other, with spark-ignition internal combustion piston
engine:
G.V.W. not exceeding 5 metric tons
* * * * *
8709 Works 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; …; parts of the foregoing vehicles…:
Vehicles:
8709.11.00 Electrical
8709.19.00 Other
ISSUE:
Whether the Micro Truk, as described, is a works truck of heading 8709.
LAW AND ANALYSIS:
Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
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The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The Micro Truk is at least prima facie described by the terms of heading 8704, HTSUS, as a motor vehicle for the transport of goods. However, we do not believe that a specificity analysis is warranted here. This is because the ENs on p. 1554 list certain design features of the works trucks of heading 8709, HTSUS, which distinguish them from the vehicles of heading 8704. Among these are their construction and special design features which make them unsuitable for the transport of goods by road or other public ways; their top speed when laden is generally not more than 30 to 35 km/h; their turning radius is approximately equal to the length of the vehicle itself; vehicles of heading 8709 do not usually have a closed driving cab, the accommodation for the driver often being no more than a platform on which to stand. Certain types may be equipped with a protective frame or metal screen; such works trucks are normally fitted with a platform or container on which the goods are loaded.
Vehicles similar to the Micro Truk are marketed to a wide range of potential users with the vehicles’ intended purpose in mind, i.e., work. They are sold for use in golf course maintenance, to haul fertilizer, sand, etc., even personnel. These uses have expanded to include hunters and other recreational users and their gear. Among the users are universities with closed campuses and businesses with large areas to cover but limited road access, in transporting materials, security personnel, etc. Some vehicles even have specially constructed beds for stretchers for use by medical-rescue teams in rough terrain.
However, heading 8709 covers vehicles of a kind used in the environments specified in the text. This is a provision governed by “use.” See Group Italglass v. United States, 17 CIT 226 (1993). As such, it is the principal use of the class or kind of vehicles to which the Micro Truk belongs that governs classification here.
Because of the wide range of potential uses, both on and off-road, we will focus our attention on the 8709 ENs. As described, the Micro Truk is equipped with numerous design features common to small pickup trucks. Also included are comfort and convenience items like interior mirrors, shoulder and lap restraints, and safety glass. The latter suggest significant on-road uses. However, in a letter to Metro Motors, dated January 25, 1999, the National
Highway Traffic Safety Administration, U.S. Department of Transportation, examined numerous factors related to the Micro Truk, and concluded that it was
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not a “motor vehicle” for purpose of regulations administered by that agency. The Micro Truk’s advertised speed of 25 mph is apparently an unladen speed. Additional information now available indicates that the Micro Truk’s top speed with a standard payload is 20 mph or 33 km/h. This is within the parameters stated in the ENs. The overall length of the Micro Truk, either 130 inches (Standard Bed) and 145 inches (Long Bed), is “approximately” equal to the vehicle’s minimum radius, which is listed in submitted specifications as 149 inches. Finally, whether the Micro Truk’s enclosed cargo bed with drop-down sides and tailgate qualifies as a platform or container on which the goods are loaded is uncertain. However, the vehicle does have a closed driving cab, which is not characteristic of vehicles of heading 8709.
We conclude that, on balance, the Micro Truk, as described, has a majority of the design features listed in the 8709 ENs as common to vehicles of that heading. For this reason, the Micro Truk belongs to the class or kind of vehicles principally used as a works truck of heading 8709. This conclusion is consistent with the classification of utility vehicles deemed substantially similar in terms of design and intended service applications to the Micro Truk. See, for example, the Mule utility vehicle (HQ 954173, dated September 22, 1993), the Gator utility vehicle (NY C83109, dated January 29, 1998), and the Carryall utility vehicle (HQ 960303, dated May 13, 1997).
HOLDING:
Under the authority of GRI 1, the Micro Truk is provided for in heading 8709. It is classifiable in subheading 8709.19.00, HTSUS.
EFFECT ON OTHER RULINGS:
NY F82672, dated February 11, 2000, is revoked. In accordance with
19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division