CLA-2 OT:RR:CTF:TCM H275962 PJG
Lisa Brandenberger
Lee Hardeman Customs Broker, Inc.
277 Southfield Parkway, Suite 135
Forest Park, Georgia 30297
RE: Revocation of NY N274106; tariff classification of a battery powered transfer trolley
Dear Ms. Brandenberger:
On April 1, 2016, U.S. Customs and Border Protection (“CBP”) issued to you New York Ruling Letter (“NY”) N274106. The ruling pertains to the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of a battery powered transfer trolley. NY 274106 states that you did not provide any evidence to support your claim that the vehicle was classified in heading 8709, HTSUS, as a works truck. We have reconsidered NY N274106 based upon the additional evidence submitted with your request.
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 (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on August 17, 2016, in Volume 50, Number 33, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In NY N274106, the subject battery powered transfer trolley was described as follows:
The item under consideration has been identified as a battery powered transfer trolley designed to run on either standard gauge rails or wheels. In your request you state that the trolley in the instant shipment will be used in a mock training facility owned by the United States Government to carry items such as monitors and cameras into tunnels (both above and underground). This is done in order to test rail operations for the purposes of your project. You state that only the rail traversing capabilities will be utilized.
You state that the track section that the trolley will be used on, which is not being imported, is approximately 1500 feet long and that the trolley itself measures 3000x2000x450mm with a load rating of two (2) tons.
In your request for reconsideration you explain that the transfer trolley at issue is
model number KPX-2T, which is similar to the “foundry plant use railroad electric transfer cart” and the “painting line apply large load capacity rail car”. These can be found on the website http://bfbtransporter.com/product/.
According to the website, the “foundry plant use railroad electric transfer cart” model number KPX-2T has the following specifications: a rated load (t) of 2; a table size (mm) of 2000x1500x450; a running speed (min) of 0-25; a battery capacity (Ah) of 180; a battery voltage (V) of 24; a running time when full load of 4.32; and a reference weight (t) of 2.8. The “painting line apply large load capacity rail car” model number KPX-2T has these same specifications, plus the following: a wheel base (mm) of 1200; a rail inner gauge (mm) of 1200; a wheel diameter (mm) of ?270; a wheel quantity of 4; a ground clearance (mm) of 50; a motor power of 1; a running distance for one charge (km) of 6.5; a max wheel load (KN) of 14.4; and a recommended rail model of P15.
The model that is at issue in this case was customized to reflect the needs of the ultimate purchaser, the Environmental Protection Agency (“EPA”). Along with your request for reconsideration, you provide a brochure containing a photograph of a model called the “battery powered transfer trolley” and its product specifications. You indicate that the specifications on the brochure reflect the specifications of the instant merchandise. According to the product specifications on the brochure, the “battery powered transfer trolley” is controlled by remote and pendent control, has a running speed of 50 meters/minute, a running distance of 500 meter, a motor power of 1 kilowatts, and a maximum wheel load of 14.4 kilonewtons. You indicate that subject merchandise weighs approximately 2.5 tons and is designed for a straight track and is not designed to be used on a flat surface.
You have also submitted a document entitled “PGA Message Set for the National
Highway Traffic Safety Administration (NHTSA)” that you found on www.cbp.gov, which defines motor vehicle as “a vehicle that is driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways.” You state that the subject trolley “is not manufactured primarily for use on public streets, roads or highways.” You further indicate that “the wheels nor the rails are made for use on public roads, rather, they are manufactured to run on a typical warehouse floor. The product will be used in a mock training facility owned by the US Government, not on public roads.” You note that the mock training facility has 1100 feet of standard gauge rail track.
Lastly, you submit a letter from the EPA indicating that they purchased the battery powered transfer trolley “to support an upcoming study looking at the remediation of a rail system that has been contaminated with a biological agent.” They also provided the following information:
The transport trolley is designed to travel on standard gauge rail tracks and is not designed to operate on any other surface. The transport trolley has standard track wheels that are set at a distance of 4 feet 8.5 inches to be able to move up and down train tracks.
The piece of equipment will be used at a Department of Defense facility to facilitate the decontamination of a subway system. The trolley will not be used on any other surface or location.
ISSUE:
Whether the subject battery powered transfer trolley is classifiable in heading 8704, HTSUS, as “Motor vehicles for the transport of goods”, or in heading 8709, HTSUS, as “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; tractors of the type used on railway station platforms; parts of the foregoing vehicles.”
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 2016 HTSUS provisions under consideration are as follows:
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; tractors of the type used on railway station platforms; parts of the foregoing vehicles:
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 87.04 states, in pertinent part:
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). These features are especially helpful in determining the classification of motor vehicles, generally vehicles having a gross vehicle weight rating of less than 5 tonnes, which have either a separate closed rear area or an open rear platform normally used for the transport of goods, but may have rear bench-type seats that are without safety seat belts, anchor points or passenger amenities and that fold flat against the sides to permit full use of the rear platform for the transport of goods. Included in this category of motor vehicles are those commonly known as “multipurpose” vehicles (e.g., van-type vehicles, pick-up type vehicles and certain sports utility vehicles). 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).
EN to 87.09 states, in pertinent part:
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.
(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.
The vehicles of this heading may be pedestrian controlled.
Works trucks are self propelled trucks for the transport of goods which are fitted with, for example, a platform or container on which the goods are loaded.
Works trucks of heading 8709, HTSUS, have certain design features which distinguish them from the vehicles of heading 8704, HTSUS. See EN 87.04. 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, HTSUS, do not usually have a closed driving cab, the accommodation for the driver often being no more than a platform 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.
In HQ H180102, CBP found that the Goldhofer self-propelled modular transporters (SPMTs) are “works trucks” because of their “extreme weight, slow laden speed, small turning radius, and inability to operate on public roads.” The Goldhofer SPMTs had the following features: speed of 4.8s km/hr; turning radius of 28.9 feet; and total length of 29.53 feet. See id. Upon review of the physical characteristics and operating capabilities of the battery powered transfer trolley, there is no dispute that the subject merchandise, like the merchandise in HQ H180102, is also identifiable as “works trucks.” The self-propelled transfer trolley’s slow laden speed of 3 km/hour, standard track wheels, straight track design, and battery power, are specialized design features that make it unsuitable for the transport of passengers or goods by road or other public ways. The transfer trolley is clearly distinguishable from vehicles of heading 87.01, 87.03, or 87.04. See EN 87.09. Moreover, while the subject merchandise weighs 2.5 tons (less than 5 tons), it does not have the following design features that would indicate that it is classifiable as a motor vehicle under heading 8704, HTSUS: bench-type seats or passenger amenities; a separate cabin for the driver and passengers; doors; a separate open platform with side panels and drop-down tailgate; a permanent panel or barrier between the area for the driver and front passengers and the rear area; a separate cargo bed area. See EN 87.04. In fact, the subject merchandise consists of a flat platform without seats, and therefore, does not have the ability to carry passengers, a driver, or goods by road or other public ways.
Heading 8709, HTSUS, covers vehicles of a kind used in the environments specified in the text. This is a provision governed by “use.” See Group Italglass U.S.A., Inc. v. United States, 17 CIT 226, 228 (1993). As such, it is the principal use of the class or kind of vehicle to which the battery powered transfer trolley belongs that governs classification here. We find that the trolley has many of the design features listed in the EN 87.09. We conclude that the trolley belongs to the class or kind of vehicles principally used as a works trucks of heading 8709, HTSUS.
Accordingly, the subject merchandise is classified in heading 8709, HTSUS, specifically under subheading 8709.11.00, HTSUS, as “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; tractors of the type used on railway station platforms; parts of the foregoing vehicles: Vehicles: Electrical.”
HOLDING:
Under the authority of GRIs 1 and 6 the battery powered transfer trolley model KPX-2T is classified in heading 8709, HTSUS, specifically in subheading 8709.11.00, HTSUS, as “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; tractors of the type used on railway station platforms; parts of the foregoing vehicles: Vehicles: Electrical.” The 2016 column one, general rate of duty is Free.
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 N274106, dated April 1, 2016, 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,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division