HQ 960303
CLA-2 RR:TC:MM 960303 HMC
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway, 43rd Floor
New York, NY 10036-8901
RE: Carryall Utility Vehicles; Headings 8704 and 8709;
Subheadings 8709.11.00 and 8709.19.00; Motor Vehicles for
the Transport of Goods; Works Trucks, Self-Propelled, Not
Fitted with Lifting or Handling Equipment, Used in
Factories, Warehouses, Dock Areas or Airports for Short
Distance Transport of Goods; HQ 954173.
Dear Sir or Madam:
This is in response to your letter to the Area Director of
Customs, New York, dated February 11, 1997, on behalf of your
client, Club Car, Inc., regarding the tariff classification of
various models of Club Car's Carryall utility vehicles under the
Harmonized Tariff Schedule of the United States (HTSUS). Your
letter was forwarded to this office for a reply.
FACTS:
The merchandise at issue are the Carryall vehicle models
Carryall I, Carryall II, Carryall II Plus, Carryall VI, and
Carryall VI XL. The Carryall models are described as self-propelled, four wheeled vehicles with an all-aluminum frame,
chassis and cargo bed. They include a single bench seat to
accommodate the driver and one passenger. The standard options
have no doors or windows and are not fitted with lifting or
handling equipment. Each model is available with numerous
options for the cargo bed, including a box or stake enclosure,
tail gate ramp or tool box. Also, a lightweight canopy top, a
protective frame or screen over the driver's seat, a windshield,
turn signal lights and a side mirror are available as options
only. All models may be powered by electricity or gasoline,
except for the Carryall II Plus which is powered only with
gasoline. Specifically, they have the following dimensions and
capacities:
Carryall
I
Carryall
II
Carryall
II Plus
Carryall
VI
Carryall
VI XL
Flatbed
model
length
100 in.
111 in.
111 in.
134 in.
165.5 in.
Boxbed
model
length
103.5 in.
114.5 in.
114.5 in.
N/A
N/A
Width
49.25 in.
50 in.
50 in.
49.25 in.
49.25 in.
Weight
(gas)
658 lbs.
724 lbs.
747 lbs.
868 lbs.
985 lbs.
Weight
(elec.)
530 lbs.
612 lbs.
N/A
743 lbs.
860 lbs.
Wheelbase
65.5 in.
77.5 in.
77.5 in.
98.5 in.
131.5 in.
Turn
radius
101 in.
120 in.
120 in.
144 in.
191 in.
Max.
Speed
(gas)
24 kph
26 kph
29 kph
26 kph
26 kph
Max.
Speed
(elec.)
24 kph
24 kph
N/A
24 kph
24 kph
The provisions under consideration are as follows:
8704 Motor vehicles for the transport of goods:
Other with spark-ignition internal
combustion piston engine:
8704.31.00 G.V.W. not exceeding 5 metric
tons...25%
8704.90.00 Other...25%
* * * *
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 platform; parts of the foregoing
vehicles:
Vehicles:
8709.11.00 Electrical...Operator
riding...Free
8709.19.00 Other...Operator riding...Free
ISSUE:
Whether the Carryall vehicles are works trucks under heading
8709, HTSUS, or vehicles for the transport of goods under heading
8704, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance
with the General Rules of Interpretation (GRIs). GRI 1 states in
part that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
GRI 3(a) states in part that when, by application of rule
2(b) or for any other reason, goods are, prima facie,
classifiable under two or more headings, the heading which
provides the most specific description shall be preferred to
headings providing a more general description.
At first glance, the Carryall vehicles have the
characteristics of vehicles designed for the transport of goods.
They are prima facie classifiable in headings 8704, HTSUS, as
vehicles for the transport of goods, and 8709, HTSUS, as works
trucks, self-propelled, not fitted with lifting or handling
equipment, or the type used in factories, warehouses, dock areas
or airports for short distance transport of goods. We must then
determine which heading more closely describes the merchandise.
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized system. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the Notes should always be consulted. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (Aug. 23, 1989). EN 87.04, at page 1547,
states in part that heading 8407, HTSUS, covers
ordinary lorries and vans (flat, tarpaulin-covered, closed,
etc.); delivery trucks and vans of all kinds, removal vans;
lorries with automatic discharging devices (tipping lorries,
etc.); tankers (whether or not fitted with pumps);
refrigerated or insulated lorries; multi-floored lorries for
the transport of acid in carboys, cylinders of butane, etc.;
dropframe heavy-duty lorries with loading ramps for the
transport of tanks, lifting or excavating machinery,
electrical transformers, etc.; lorries specially constructed
for the transport of fresh concrete, other than concrete-mixer lorries of heading 87.05; refuse collectors whether or
not fitted with loading, compressing, damping, etc.,
devices. This heading also covers: (1) Dumpers...(2)Shuttle
cars...(3) Self-loading vehicles...(4) Road-rail lorries.
EN 87.09, at page 1554, states in part that heading 8709, HTSUS,
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 summari[z]ed as
follows:
(1) Their construction and, as 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 drivers seat.
Works trucks are 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.
You contend that the Carryall vehicles with electrical
engines should be classified under subheading 8709.11.00, HTSUS,
and that the Carryall vehicles with gasoline-powered engines
should be classified under 8709.19.00, HTSUS, based on the
premise that the vehicles are more specifically described in
heading 8709, HTSUS, by meeting the criteria of EN 87.09. To
support your contention, you cite Headquarters Ruling (HQ)
954173, dated September 22, 1993, classifying similar merchandise
in heading 8709, HTSUS.
Heading 8709, HTSUS, has been held to be a use provision.
See HQ 954173. Additional U.S. Rule of Interpretation 1(a),
HTSUS, states that in the absence of special language or context
which otherwise requires, a tariff classification controlled by
use (other than actual use) is to be determined in accordance
with the use in the United States at, or immediately prior to,
the date of importation, of goods of that class or kind to which
the imported goods belong, and the controlling use is the
principal use. The subject articles will thus fall under heading
8709 if they belong to the class or kind of articles principally
used in factories, warehouses, dock areas or airports for the
short distance transport of goods. The Court of International
Trade (CIT) has established various factors, which are indicative
but not conclusive, to apply when determining principal use
within a particular class or kind. They include: general
physical characteristics, the expectation of the ultimate
purchaser, channels of trade, environment of sale (accompanying
accessories, manner of advertisement and display), use in the
same manner as merchandise which defines the class, economic
practicality of so using the import, and recognition in the trade
of this use. See Hartz Mountain Corp., 903 F.Supp. 57, 59, CIT
Slip Op. 95-154 (Sept. 1, 1995).
EN 87.09 lists the general physical characteristics
indicative of the kind or class of articles of heading 8709,
HTSUS. In this instance, if the subject merchandise meet the
definition of EN 87.09, then the goods are more specifically
provided in heading 8709, HTSUS.
Nothing in the importer's literature or in your brief
provides a clear understanding of what is the principal use of
the Carryall vehicles. Nevertheless, the literature is cited to
show that the uses contemplated by heading 8709, HTSUS, are
prominent among the uses for the vehicles. It was argued that
since the basic Carryall vehicles options have no doors or
windows and are not fitted with hazard lights, rear-view mirrors,
standard-size street or highway tires, lifting or handling
equipment, the merchandise meet the criteria of EN 87.09. HQ
954173, dated September 22, 1993, is also cited to support the
contention that the Carryall vehicles fall in heading 8709,
HTSUS. That ruling classified various Kawasaki's Mule vehicles
in heading 8709, HTSUS, after noting the design features of the
vehicles and stating that the variables of EN 87.09 are
approximations. It is suggested that the Carryall vehicles, like
the Mule vehicles, have many of the features described in the
87.09 ENs. We agree.
Applying the above stated factors and guidelines, we find
that, the design characteristics of the Carryall vehicles support
the conclusion that they are principally used in locales like a
factory or airport to transport goods over a relatively short
distance. The Carryall vehicles maximum speed is 29 kmh, they do
not usually have a closed driving cab and the turning radii of
the Carryall models I, II, II Plus and VI are approximately the
length of the vehicles themselves. Also, the vehicles'
relatively lightweight construction and design make them
unsuitable for long transport of goods by road or other public
ways.
We note, in the evidence presented, that each model is
available with numerous options for the cargo bed. Also, a
lightweight canopy top, a protective frame or screen over the
driver's seat, a windshield, turn signal lights and a side mirror
are available as options only. The literature further shows that
the Carryall vehicles are marketed not only for uses in
factories, warehouses, dock areas or airports, but also for such
places as a golf course, farm house and baseball stadium. Yet,
we believe that these other uses and options do not alter our
finding that the Carryall vehicles have the main features --
special design, top speed of not more than 30 to 35 kmh and
turning radius approximately equal to the length of the vehicles
themselves -- common to the vehicles of heading 8709, HTSUS.
We also note that the Carryall VI XL's turning radius
measures 35 inches longer than the length of the vehicle. We
believe that, in this instance, as with the merchandise of HQ
954173, the radius length is only a minor variation when compared
to the other features of the vehicle. We therefore find that the
Carryall vehicles are more closely described in heading 8709,
HTSUS, and that they are specifically provided under subheading
8709.11.00, HTSUS, if powered by electricity and 8709.19.00,
HTSUS, if powered with gasoline.
HOLDING:
Under the authority of GRI 3(a), the Carryall vehicles
models I, II, II Plus, VI and VI XL are properly classified 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:. They are classifiable under subheading
8709.11.00, HTSUS, as Vehicles: Electrical: Operator riding, if
powered by an electric engine and under 8709.19.00, HTSUS, as
Vehicles: Other: Operator riding, if powered with gasoline. The
rate of duty is Free.
Sincerely,
John Durant, Director
Tariff Classification Appeals Division