CLA-2 OT:RR:CTF:EMAIN H269330 PF
Mr. Kenneth M. Carmon, President
Bay Brokerage, Inc.
44951 Country Route 191, Suite 201
Wellesley Island, New York 13640
RE: Modification of NY N106796; tariff classification of a Mine Personnel Carrier
Dear Mr. Carmon:
On June 2, 2010, U.S. Customs and Border Protection (“CBP”) issued to you New York Ruling Letter (“NY”) N106796. It concerned the tariff classification of a Mine Personnel Carrier under the Harmonized Tariff Schedule of the United States (“HTSUS”). We have reconsidered NY N106796 and have determined that the Law and Analysis section should be modified to reflect that sufficient evidence was not provided to support the assertion regarding the number of seats in the vehicle. We have reviewed NY N106796 and find it to be partially in error. For the reasons set forth below, we hereby modify NY N106796.
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, a notice proposing to modify NY N106796 was published on July 5, 2018, in Volume 52, Number 27 of the Customs Bulletin. No comments were received in response to the proposed action.
FACTS:
In NY N106796, the subject Mine Personnel Carrier was described as follows:
It consists of the chassis and cab of a Toyota Land Cruiser modified with a rear passenger seating.
The Carrier features power steering, tilt steering wheel, seatbelts in the two (2) front seats, air conditioning, heating, stereo system, 4.2-litre compression-ignition engine, 3200 kg. (7055 lbs.) GVW suspension and 5-speed manual transmission. The rear passenger portion is equipped with non-removable upholstered bench seats, parallel to each other. You state in your ruling request that the bench seats accommodate from six to eight miners dressed in underground safety equipment. Entry is through the rear by means of a step-up bumper. The rear compartment has no lockers, tool boxes or other visible storage capability. Though open at the bottom, the bench seats are built low to the floor which makes storage of tools or other equipment impractical.
You state in your ruling request that at the time of import the vehicle is equipped with an exhaust purifier and, although not equipped with governor to restrict speed, the gearing of the vehicle only allows a top speed of 20 miles per hour.
In NY N106796, CBP classified the merchandise in heading 8703, HTSUS, and specifically under subheading 8703.33.0045, HTSUSA, which in the 2010 Basic Edition of the HTSUS provided for “Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars: Other vehicles with compression-ignition internal combustion piston engine (diesel or semi-diesel): Of a cylinder capacity exceeding 2,500 cc: Other: New.” We note that in one place, CBP inadvertently referred to the article as a “Hydraulic Boom Lift Truck” rather than as a “Mine Personnel Carrier.”
ISSUE:
Whether the subject Mine Personnel Carrier is classifiable in heading 8702, HTSUS, which provides for “Motor vehicles for the transport of ten or more persons, including the driver,” or in heading 8703, HTSUS, which provides for “Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars.”
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods 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 may then be applied.
The HTSUS provisions under consideration are as follows:
8702 Motor vehicles for the transport of ten or more persons, including the driver:
8703 Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars:
Other vehicles, with only compression-ignition internal combustion piston engine (diesel or semi-diesel):
8703.33.01 Of a cylinder capacity exceeding 2,500 cc:
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System 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 to 87.03 states, in pertinent part:
* * *
The classification of certain motor vehicles in this heading is determined by certain features which indicate that the vehicles are principally designed for the transport of persons rather than for the transport of goods (heading 87.04). These features are especially helpful in determining the classification of motor vehicles which generally have a gross vehicle weight rating of less than 5 tonnes and which have a single enclosed interior space comprising an area for the driver and passengers and another area that may be used for the transport of both persons and goods. Included in this category of motor vehicles are those commonly known as "multipurpose” vehicles (e.g., van-type vehicles, sports utility vehicles, certain pick-up type vehicles). The following features are indicative of the design characteristics generally applicable to the vehicles which fall in this heading :
(a) Presence of permanent seats with safety equipment (e.g., safety seat belts or anchor points and fittings for installing safety seat belts) for each person or the presence of permanent anchor points and fittings for installing seats and safety equipment in the rear area behind the area for the driver and front passengers; such seats may be fixed, fold-away, removable from anchor points or collapsible;
(b) Presence of rear windows along the two side panels;
(c) Presence of sliding, swing-out or lift-up door or doors, with windows, on the side panels or in the rear;
(d) Absence of a permanent panel or barrier between the area for the driver and front passengers and the rear area that may be used for the transport of both persons and goods;
(e) Presence of comfort features and interior finish and fittings throughout the vehicle interior that are associated with the passenger areas of vehicles (e.g., floor carpeting, ventilation, interior lighting, ashtrays).
* * *
In HQ 962540, dated March 31, 1999, CBP classified two customized Toyota Land Cruiser mine vehicles, specifically, a covered mine personnel carrier and a hydraulic lift or boom vehicle. With regard to the covered mine personnel carrier, CBP stated the following:
[B]eyond stating [in its] submission that the personnel carrier ‘contains bench seats that accommodate six to eight miners,’ Mac makes no argument that the vehicle is ‘designed’ for the transport of ten or more persons. Neither submitted literature nor Federal mine safety and health regulations specify the vehicle’s seating capacity. There is no evidence from which we can conclude the personnel carrier is described by heading 8702.
Similarly, in the instant case, you stated in your ruling request that the “open rear passenger compartment” has “bench seats [that] accommodate from six to eight miners dressed in underground safety equipment.” No further evidence was submitted to support this assertion. Moreover, in response to questions raised by CBP, you stated that the “vehicle is equipped with six (6) sets of seat belts for passengers sitting in the rear seats.” You did not explain the absence of the additional two seat belts in the rear passenger seating area. NY N106796 is being modified to reflect that sufficient evidence was not submitted to support the assertion that ten people could be seated in the vehicle and, therefore, the subject mine personnel carrier is not described by heading 8702, which provides for “Motor vehicles for the transport of ten or more persons, including the driver.” NY N106796 is also being modified by changing the reference to the “Hydraulic Boom Lift Truck” to the “Mine Personnel Carrier.”
We find that the remainder of the justification provided for in NY N106796 concerning the classification of the subject merchandise is correct and should remain unchanged. Therefore, the subject Mine Personnel Carrier is properly classified under heading 8703, HTSUS. The subheading number, however, must be adjusted to reflect the corresponding subheading in the Revision 4 Edition of the 2018 HTSUS. Therefore, the appropriate classification for the subject merchandise is 8703.33.01, HTSUS, which provides for “Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars: Other vehicles, with only compression-ignition internal combustion piston engine (diesel or semi-diesel): Of a cylinder capacity exceeding 2,500 cc.”
HOLDING:
Under the authority of GRIs 1 and 6, the subject Mine Personnel Carrier is classified in heading 8703, HTSUS, specifically under subheading 8703.33.01, HTSUS, which provides for “Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars: Other vehicles, with only compression-ignition internal combustion piston engine (diesel or semi-diesel): Of a cylinder capacity exceeding 2,500 cc.” The 2018 column one, general rate of duty is 2.5 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N106796, dated June 2, 2010, is MODIFIED.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division