CLA-2 CO:R:C:M 951442 AJS
Mr. Ben L. Irvin
Irvin & Ellis
Attorneys at Law
1709 N Street, N.W.
Washington, D.C. 20036
RE: Asquith Shire; Special purpose motor vehicle; Heading 8704;
ENs 87.05; ENs 87.05 (22); H. Conf. Rep. No. 576; The Carrington
Co. v. U.S.
Dear Mr. Irvin:
Your letter of March 9, 1992, requesting the tariff
classification of the Asquith "Shire" motor vehicle under the
Harmonized Tariff Schedule of the United States (HTSUS), has been
referred to this office for reply.
FACTS:
The Shire is a one ton 1920s replica motor vehicle built on
a Ford Transit chassis. It possesses an extra roof rack that
carries message boards, and detachable side panels that also
serve as message boards or serving hatches. It is available with
an extended roof which gives the vehicle an interior height of
six feet. The interior is equipped with catering equipment such
as cabinets, shelving, ice chest, and faucet. The vehicle
appears to be suitable for promotional activities such as serving
free samples of refreshments or as a vendor's wagon for selling
refreshments at outdoor activities such as fairs, picnics and
carnivals.
ISSUE:
Whether the Shire is classifiable within heading 8705,
HTSUS, which provides for "[s]pecial purpose motor vehicles,
other than those principally designed for the transport of
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persons or goods (for example . . . mobile workshops, mobile
radiological units)."; or classifiable within heading 8704,
HTSUS, which provides for motor vehicles for the transport of
goods.
LAW AND ANALYSIS:
Heading 8705, HTSUS, provides for special purpose motor
vehicles. The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) to heading 87.05 state that this heading
covers a range of motor vehicles, specially constructed or
adapted, equipped with various devices that enable them to
perform certain non-transport functions, i.e., the primary
purpose of a vehicle of this heading is not the transport of
persons or goods. ENs 87.05, p. 1429 (1992). The Shire
satisfies this description. It is a special purpose vehicle
equipped with catering equipment which is used to advertise and
dispense refreshments. From its design, it is apparent that the
vehicle will be used not only to transport refreshments from one
place to another but, more importantly, to dispense or sell
refreshments at the place of arrival.
The ENs to 87.05 further state that this heading includes
mobile banks, travelling libraries, and mobile showrooms for the
display of goods. ENs 87.05 (22). The Shire also satisfies this
description. It is a mobile concession stand for the advertise-
ment and distribution of refreshments. While the ENs are not
dispositive, they provide a commentary on the scope of each
heading and offer guidance for interpretation of the HTSUS. H.
Conf. Rep. No. 576, 100th Cong., 2d Sess., p. 549, reprinted in
1988 U.S. CODE CONG. & ADMIN. NEWS p. 1582. Accordingly, we
consider the above ENs instructive for determining that the Shire
satisfies the terms of heading 8705, HTSUS. More specifically,
the Shire is described within subheading 8705.90.00, HTSUS, which
provides for "other" special purpose motor vehicles.
In The Carrington Co., United Geophysical Corp. v. United
States, C.D. 4415 (1973), aff'd, 496 F.2d 902 (1974), the Customs
Court discussed the predecessor provision of heading 8705, HTSUS,
(i.e., item 692.16) under the Tariff Schedules of the United
States (TSUS). The Court stated that "special purpose vehicles
might consist of . . . chassis plus various devices fitted
thereon, equipping them for special purposes or functions." C.D.
4415 at 113. The Court further stated that "[i]t is sufficient
[for classification as a special purpose vehicle] if the unit be
specially constructed and equipped for special services or
functions." The Shire satisfies these descriptions. It consists
of a chassis upon which a 1920s replica vehicle is built, plus an
extra roof rack that carries message boards and detachable side
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panels that also serve as message boards or serving hatches. It
is additionally specially equipped with catering equipment.
These additional features are for the special service of
dispensing refreshments and providing unique advertising.
Therefore, the Shire also satisfies the Carrington description of
a special purpose vehicle.
Congress has indicated that earlier tariff decisions must
not be disregarded in applying the HTSUS. The conference report
to the 1988 Omnibus Trade Bill states that "on a case-by-case
basis prior decisions should be considered instructive in
interpreting the HTS[US], particularly where the nomenclature
previously interpreted in those decisions remains unchanged and
no dissimilar interpretation is required by the text of the
HTS[US]." H. Conf. Rep. No. 576, 550. While the structure of
the two provisions has changed somewhat, both provisions
essentially cover types of special purpose motor vehicles. In
addition, no dissimilar interpretation is required by the text of
heading 8705, HTSUS. As discussed previously, the text of the
HTSUS supports a similar interpretation. Accordingly, we find
the Carrington decision instructive for interpreting the meaning
of "special purpose vehicles" under the HTSUS.
Heading 8704, HTSUS, provides for motor vehicles for the
transport of goods. It is argued that the Shire is properly
classifiable within this heading. However, it does not satisfy
this description. As discussed previously, the Shire is a
special purpose vehicle used to dispense and advertise
refreshments and not merely for the transport of goods. Thus,
the Shire is not properly classifiable within heading 8704,
HTSUS.
HOLDING:
The Asquith Shire is classifiable within subheading
8705.90.00, HTSUS, which provides for "other" special purpose
motor vehicles, currently dutiable at the General Column 1 rate
of 3.7 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division