• HQ H122237
• May 19, 2011

• Type : Classification • HTSUS : 8704.23.00
•  Related:   77032; 35127; 35128; 955231; 960303; H030419   

CLA-2 OT:RR:CTF:TCM H122237 CkG

Service Area Port Director
U.S. Customs and Border Protection
Port of Houston
2350 N. Sam Houston Pkwy E. #1000Houston, TX 77032-3100

RE: Internal Advice 10/027; classification of self-propelled modular transports

Dear Port Director: This letter is in response to your memorandum forwarding Request for Internal Advice # 10/027, dated August 12, 2010, from Cameron International Corporation, concerning the classification of self-propelled modular transports under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The Goldhofer PST/SL6 is a self-propelled modular transporter (SPMT). An SPMT is a modular vehicle designed for off-highway transport of extremely heavy loads over short distances. An SPMT is a modular unit, meaning that it can be connected to other SPMTs to accommodate larger loads. An SPMT is not towed by a tractor; rather it contains its own integrated power system. Each transport contains a removable power pack unit, containing the fuel combustion engine which drives the hydraulic pumps used to propel, steer and raise/lower the trailers. The top speed of the transporters when fully laden is 4.8s km/h. The power pack unit can also hydraulically raise or lower the trailer platform approximately 24 inches to allow the transporter to drive under a cargo load and lift it up, then set it down precisely at its destination. The total length of the transporter is 29.53 feet, and the outside turning radius is 28.9 feet. The transporters are imported with only an open bench seat for the driver, although an enclosed driver’s cabin is available as an optional accessory. The vehicle can alternately be controlled via remote.

ISSUE:

Whether the instant transports are classified in heading 8704, HTSUS, as motor vehicles for the transport of goods, or heading 8709, HTSUS, as works trucks.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6.

The HTSUS provisions under consideration are as follows: 8704: Motor vehicles for the transport of goods: Other, with compression-ignition internal combustion piston engine (diesel or semi-diesel): 8704.23.00: G.V.W. exceeding 20 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:

8709.19.00: Other…

*      *               *           *          *  The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor 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 Fed. Reg. 35127, 35128 (August 23, 1989).

EN 87.04 provides, in pertinent part, as follows:

The classification of certain motor vehicles in this heading is determined by certain features which indicate that the vehicles are designed for the transport of goods rather than for the transport of persons (heading 87.03)… The following features are indicative of the design characteristics generally applicable to the vehicles which fall in this heading:

(a)   Presence of bench-type seats without safety equipment (e.g., safety seat belts or anchor points and fittings for installing safety seat belts) or passenger amenities in the rear area behind the area for the driver and front passengers.  Such seats are normally fold-away or collapsible to allow full use of the rear floor (van-type vehicles) or a separate platform (pick-up vehicles) for the transport of goods;

(b)   Presence of a separate cabin for the driver and passengers and a separate open platform with side panels and a drop-down tailgate (pick-up vehicles);

(c)   Absence of rear windows along the two side panels; presence of sliding, swing-out or lift-up door or doors, without windows, on the side panels or in the rear for loading and unloading goods (van-type vehicles);

(d)   Presence of a permanent panel or barrier between the area for the driver and front passengers and the rear area;

(e)   Absence of comfort features and interior finish and fittings in the cargo bed area which are associated with the passenger areas of vehicles (e.g., floor carpeting, ventilation, interior lighting, ashtrays). … This heading also covers :

Selfloading vehicles equipped with winches, elevating devices, etc., but designed essentially for transport purposes.

EN 87.09 provides, in pertinent part, as follows:

This heading covers a group of selfpropelled 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.

Such vehicles are of many types and sizes. They may be driven either by an electric motor with current supplied by accumulators or by an internal combustion piston engine or other engine.

The main features common to the vehicles of this heading which generally distinguish them from the vehicles of heading 87.01, 87.03 or 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.

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. The vehicles of this heading may be pedestrian controlled.

Works trucks are selfpropelled trucks for the transport of goods which are fitted with, for example, a platform or container on which the goods are loaded. Small tank trucks of a kind generally used in railway stations, whether or not fitted with subsidiary pumps, are also classified here.

Tractors of the type used on railway station platforms are designed primarily to tow or push other vehicles, e.g., small trailers. They do not themselves carry goods, and are generally lighter and less powerful than the tractors of heading 87.01. Tractors of this type may also be used on wharfs, in warehouses, etc.

*      *               *           *           *         The importer claims classification in heading 8709, HTSUS, as a works truck, self-propelled, not fitted with lifting or handling equipment. As noted above, the transporter contains an elevating platform which has the ability to raise and lower approximately 24 inches to allow the transporter to drive under a cargo load and lift it up; this allows the transporter to forgo the need for additional lifting equipment, such as a crane, to place the load on the trailer bed. The manufacturer’s website further notes that the transporters are “not only used for transportation, rather, they are also utilized for precise positioning of large and heavy loads.” See http://www.goldhofer.de/gh-en/modular-vehicles/hydrostatic-drive-system-standard-pst.php. The brochure available on the Goldhofer website for its heavy duty modules (available at http://www.goldhofer.de/gh-de/pdf/de/goldhofer-modulfahrzeuge_d-e.pdf), further describes how its modular vehicles “independently lift the load by means of the hydraulic suspension system and set it down precisely at its destination.” See Goldhofer brochure, p. 25. Trucks with lifting or handling equipment are excluded from heading 8709, HTSUS. Although counsel points to a prior CBP ruling, HQ 955231, dated January 7, 1994, classifying a similar vehicle (a Scheurele Hydraulic Transporter) in heading 8709, HTSUS, we note that this ruling relied in part on the language of the EN to 87.09, which at the time included “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 (emphasis added).” EN 87.09 no longer contains any reference to elevating platforms.

The importer further cites to HQ 960303, dated May 13, 1997, which classified several models of the Club Car Carryall in heading 8709, HTSUS. Unlike the instant modular vehicles, the Carryall vehicles were not fitted with lifting or handling equipment. However, we agree that HQ H030419, dated October 29, 2009, which classified vehicles known as "Cooler Scooters” in heading 8704, HTSUS, is not helpful precedent for classification of the instant vehicles, as heading 8709 was not under consideration in that ruling.

Furthermore, heading 8709, HTSUS, covers vehicles for the short-distance transport of goods, unsuitable for on-road use. As noted in the Goldhofer brochure (p.9), its modular vehicles are designed to “bring cargo to its destination across kilometers of uneven terrain.” A distance of several kilometers is not the short- distance transportation envisaged by heading 8709, HTSUS. Traveling such a distance also inevitably involves the use of public roads. Indeed, the Goldhofer website notes that “Goldhofer transport vehicles are in continuous operation in this segment and are equally suited for covering long-distances on motorways or hauling awkward and complicated loads via rural highways.” See http://www.goldhofer.de/gh-en/modular-vehicles/range-ofapplication.php?WSESSIONID=0e367a75a34c9d2da3c0f1819e01c6c2. More specifically, the Goldhofer brochure notes with regard to its THP modules (which it notes are combined with the PST transporters), that they are developed for on-road use. Images of Goldhofer modules transporting their cargo on-road further suggest suitability for such use, as do the optional accessories: enclosed driver’s cabin, front and rear lighting, etc.

Although the vehicle meets the remaining criteria listed in EN 87.09 (low speed, turning radius approximately equal to the length of the vehicle itself), their lifting capability alone excludes them from classification as works trucks not fitted with lifting equipment of heading 8709, HTSUS (emphasis added). However, even if heading 8709 described the vehicle, their intended use for off and on road, long-distance transportation, makes them more specifically described as transport vehicles of heading 8704, HTSUS, rather than as “works trucks” of heading 8709, HTSUS.

Counsel disputes classification in heading 8704, arguing that the features listed in EN 87.04 as indicative of vehicles of heading 8704 are not applicable to the instant transports. We note, however, that these features primarily distinguish between vehicles of 8703 (designed for the transport of persons), and those of 8704 (transport of goods), and as such are intended as a guide for classifying “multipurpose” vehicles. However, classification in heading 8704 is not restricted solely to such multipurpose vehicles, as evidenced by the EN, which continues on to list other types of vehicles included in that heading, such as self-loading vehicles equipped with elevating devices. As a motor vehicle for the transport of goods, the SPMT thus falls within the scope of heading 8704.

HOLDING:

By application of GRI 1, the Goldhofer PST/SL6 is classified in heading 8704, HTSUS, specifically subheading 8704.23.00, HTSUS, which provides for “Motor vehicles for the transport of goods: Other, with compression-ignition internal combustion piston engine (diesel or semi-diesel): G.V.W. exceeding 20 metric tons.” The 2010 column one, general rate of duty is 25% ad valorem.

You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division