CLA-2 RR:CTF:TCM H183882 CKG
TARIFF NO: 8436.80.00
RE: Revocation of NY 849985; classification of minkomatic
Ms. Dona M. Schuette
Norcar Inc. 1336 Russet Court
Green Bay, WI 54213
Dear Ms. Schuette,
This is in reference to New York Ruling Letter (NY) 849985, which U.S. Customs and Border Protection (CBP) issued to Norcar, Inc. on March 5, 1990, classifying three models of the Minkomatic vehicle in heading 8704, HTSUS, as a motor vehicle for the transport of goods. For the reasons set forth below, we have determined that the classification of the Minkomatic in heading 8704, HTSUS was incorrect.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY 849985 was published on January 29, 2014, in Volume 48, Number 4 of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
NY 849985 described the vehicles at issue as follows:
The Minkomatic is a motor vehicle used to transport premixed feed from the feed
kitchen to the animals in their pens. The vehicle serves no other function than to carry food; the machine does not mix, prepare or aerate food.
The Minkomatic 810 DLA 4-WD is an articulated vehicle with six wheels that is
designed for use on large scale fur farms. This model is powered by a 4 cylinder, 4-stroke, water cooled diesel engine and a variable hydrostatic transmission. Other features include hydrostatic chassis steering, an adjustable driver's seat, adjustable foot pedals, feed pump, and easy to read gauges. The model 810 has a stainless steel feed tank that is located behind the driver and is situated on the rear portion of the articulated chassis. The tank holds 2,450 pounds of feed (or 3,150 pounds of feed). This vehicle (larger tank model) measures 11 feet 4 inches long, 5 feet wide, 35 inches wide, and weighs 2,150 pounds.
The Minkomatic 450 DLA is a vehicle with four wheels designed for use on fur farms. This model is powered by a Kubota l6 HP, 3-cylinder diesel engine and a stepless fully hydrostatic transmission. The engine is mounted in a heavy rubber cushion and is completely vibration free. Other features include an adjustable driver's seat, adjustable foot pedals, a start safety clutch, feed pump, and easy to read gauges. The model 450 has a food tank located in front of the driver. The tank holds 850 pounds of feed (or 1,050 pounds of feed). This vehicle (larger tank model) measures 7 feet 8 inches wide, 34 inches wide, and weighs 1,075 pounds.
The Minkomatic 409 DLA is a vehicle with four wheels designed for use on large mink and fox farms. This model is powered by a 14 HP diesel engine and an automatic transmission. The model 409 has a food tank located in front of the driver. The tank holds 360 liters. The vehicle measures approximately 76 inches long, 29.25 inches wide and weighs 946 pounds.
ISSUE:
Whether the Minkomatic is classified in heading 8704, HTSUS, as a motor vehicle for the transport of goods, or heading 8436, HTSUS, as other agricultural machinery.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
8436: Other agricultural, horticultural, forestry, poultry-keeping or bee-keeping machinery, including germination plant fitted with mechanical or thermal equipment; poultry
incubators and brooders; parts thereof:
* * * * *
8704: Motor vehicles for the transport of goods:
* * * * *
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…:
* * * * *
Legal Note 1(l) to Section XVI provides as follows:
This section does not cover:
(l) Articles of section XVII
* * * * *
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:
This heading covers in particular :
Ordinary lorries (trucks) and vans (flat, tarpaulin covered, closed, etc.); delivery trucks and vans of all kinds, removal vans; lorries (trucks) with automatic discharging devices (tipping lorries (trucks), etc.); tankers (whether or not fitted with pumps); refrigerated or insulated lorries (trucks); multi floored lorries (trucks) for the transport of acid in carboys, cylinders of butane, etc.; dropframe heavy duty lorries (trucks) with loading ramps for the transport of tanks, lifting or excavating machinery, electrical transformers, etc.; lorries (trucks) specially constructed for the transport of fresh concrete, other than concrete mixer lorries (trucks) of heading 87.05; refuse collectors whether or not fitted with loading, compressing, damping, etc., devices.
The EN for heading 8709 states:
This 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.
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.
* * * * *
NY 849985 classified the three Minkomatic models in heading 8704, HTSUS, as a motor vehicle for the transport of goods. Classification in heading 8709, HTSUS, as a works truck, has also been suggested. However, the Minkomatic is not classified in either headings 8704 or 8709, HTSUS, because it is not principally used for the transport of goods. Headings 8704 and 8709, HTSUS, are provisions governed by “use.” Group Italglass v. United States, 17 CIT 226 (1993). Additional U.S. Rule of Interpretation 1(b). As such, it is the principal use of the class or kind of vehicles to which the Micro Truk belongs that governs classification here. In this context, principal use is that use which exceeds any other single use of the merchandise. In United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (1976), the court set forth factors considered pertinent in determining whether imported merchandise falls within a particular class or kind. These include the general physical characteristics of the merchandise, the expectation of the ultimate purchasers, the channels, class or kind of trade in which the merchandise moves, the environment of sale (i.e., accompanying accessories and the manner in which the merchandise is advertised and displayed), the use, if any, in the same manner as merchandise which defines the class, the economic practicality of so using the import and the recognition in the trade of this use.
Vehicles of headings 8709 and 8704, HTSUS, are principally used only for transport. The principal use of a good in this context is that use which exceeds any other single use of the merchandise. The Minkomatic, however, has two equally important functions: transport and mink feeding. The Minkomatic is a composite machine incorporating both a vehicle and animal feeder. Its physical characteristics are therefore of a dual-use device, designed both to transport and deliver mink feed to the the minks. The remaining Carborundum factors in fact indicate a greater emphasis on the use of the Minkomatic as an agricultural machine; it is advertised and sold to farms for the purpose of mink feeding, and categorized as a farm product by the importer. See http://www.norcar.com/en/farm-products/feeding. The transport function of the Minkomatic thus does not exceed its use as an animal feeder; to the contrary, the Carborundum factors, while not conclusive in this case, suggest the opposite conclusion. Headings 8704 and 8709, HTSUS, only cover the transport function of the Minkomatic; as such, the Minkomatic is beyond the scope of 8709 or 8704 because it has no single principal use.
Furthermore, heading 8709, HTSUS, only covers vehicles of a kind used in the environments specified in the heading text. The Minkomatic is not used in the type of environments listed in the text of heading 8709, HTSUS—i.e., dock areas, factories, warehouses and airports. These environments are likely to feature smooth, paved surfaces. The Minkomatic is designed only for off-road, farm use, which also precludes it from classification in heading 8704, HTSUS, as a motor vehicle for the transport of goods. Heading 8704, HTSUS, primarily describes vehicles for on-road use. The Minkomatic lacks the features that would even legally allow it to be used on roads and other public ways, such as rear hazard lights, mirrors, road tires, turn signals, seat belts, doors, or enclosed cab.
Because the Minkomatic is not classified in heading 8704 or heading 8709, HTSUS, it is not an article of Section XVII, and classification in Section XVI is not precluded by Note 1(l) to Section XVI.
The Minkomatic can equally be described as a vehicle for the transport of goods and as an animal feeder. Both of these functions are captured, at GRI 1, by heading 8436, HTSUS. Heading 8436, HTSUS, provides for “Other agricultural, horticultural, forestry, poultry-keeping or bee-keeping machinery, including germination plant fitted with mechanical or thermal equipment; poultry incubators and brooders; parts thereof.” EN 84.36 notes that “The heading covers machinery, not falling in headings 84.32 to 84.35, which is of the type used on farms (including agricultural schools, co operatives or testing stations), in forestry, market gardens, or poultry keeping or bee keeping farms or the like.”
The Merriam Webster Dictionary Online defines “Agriculture” as “the science, art, or practice of cultivating the soil, producing crops, and raising livestock and in varying degrees the preparation and marketing of the resulting products: farming.” Wikipedia defines livestock as “one or more domesticated animals raised in an agricultural setting to produce commodities such as food, fiber and labor…On a broader view, livestock refers to any breed or population of animal kept by humans for a useful, commercial purpose.” See http://en.wikipedia.org/wiki/Livestock. The Merriam-Webster Dictionary Online similarly defines livestock as “: animals kept or raised for use or pleasure; especially: farm animals kept for use and profit.” See http://www.merriam-webster.com/ dictionary/livestock. The Oxford English Dictionary Online concurs, defining “livestock” as: “Domestic animals kept on a farm for use or profit; esp. cattle, sheep, and pigs.” http://www.oed.com/view/Entry/109349?redirectedFrom=livestock#eid.
The vehicles in question are used on mink farms, which raise minks for their fur, i.e., for a commercial purpose. As a machine used on a farm, for the purpose of raising livestock, which is not described by headings 8432 to 8435, HTSUS, the Minkomatic falls under heading 8436, HTSUS. Furthermore, heading 8436, HTSUS, also encompasses the transport function of the Minkomatic; vehicles used in agricultural applications are still classified in the various headings covering agricultural machinery, such as headings 8432 and 8436, HTSUS.
This conclusion is consistent with prior CBP rulings. CBP has classified automatic feeding devices in 8436, HTSUS. See HQ 954551, dated August 26, 1993, NY L85882, dated July 14, 2005, NY G82691, dated October 2, 2000. These feeders were stationary and not integrated into a truck; however, trucks performing other agricultural tasks such as spreading, spraying, composting, etc. are also classified as agricultural or forestry machinery. See e.g., HQ 087703, dated January 18 1991; NY F87871, dated June 7, 2000; and NY N030782, dated June 23, 2008. Any agricultural or forestry vehicle can be said to transport its cargo, be it fertilizer, seeds, logs, etc. between locations. The transport function in such machinery is generally treated as subsidiary to the agricultural function.
The Minkomatic is thus described at GRI 1 by heading 8436, HTSUS.
HOLDING:
By application of GRI 1, the Minkomatic 810, 450 and 409 are classified in
heading 8436, HTSUS, specifically subheading 8436.80.00, HTSUS, which provides for
“Other agricultural, horticultural, forestry, poultry-keeping or bee-keeping machinery,
including germination plant fitted with mechanical or thermal equipment; poultry
incubators and brooders; parts thereof: Other machinery.” The 2013 column one, general rate of duty is Free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY 849985, dated March 5, 1990, is hereby revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division