CLA-2 RR:CR:GC 964163 JAS
Port Director of Customs
8337 NE Alderwood Road
Portland, OR 97220
RE: Protest 2904-00-100030; TracHorse
Dear Port Director:
This is our decision on Protest 2904-00-100030, filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of the TracHorse. The entries under protest were liquidated on January 7 and 28, 2000, and this protest timely filed on February 25, 2000.
FACTS:
The TracHorse is described in submitted literature as a self-propelled mobile hydraulic power unit. It is a manually-operated, tracked vehicle with front-mounted 20 hp. engine and rear-mounted hydraulic tilt bed with drop-down removable side panels. The TracHorse can climb up to a 60° incline, turn 360° on its center, and has a 1,000 lb. rated load capacity. It can operate hydraulic tools and is advertised primarily for use by the railroad industry to transport tools and equipment to and from job sites and to remove debris. Protestant describes the vehicle as a “motorized wheelbarrow with tracks…consist[ing] of a loader with hydraulic lift for dumping.”
The TracHorse was entered under a provision in HTS heading 8428 as wagon tippers and similar railway wagon handling equipment. The entry was liquidated under a provision of HTS heading 8704 as motor vehicles for the transport of goods. Counsel for the protestant makes the following argument in support of classification under HTS heading 8701 as pedestrian controlled tractors: (1) the TracHorse is within the HTSUS definition of the term “tractors” in that it is constructed essentially for hauling or pushing another vehicle, appliance or load; (2) the TracHorse is a pedestrian controlled tractor of the type described in
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Harmonized Commodity Description and Coding System Explanatory Notes (ENs) to heading 87.01; (3) because the TracHorse is tracked and not wheeled, it does not qualify as a motor vehicle; and, (4) the heading 8704 classification is inconsistent with a Headquarters ruling on similar merchandise.
The HTSUS provisions under consideration are as follows:
Other lifting, handling, loading or unloading machinery
* * * *
8701 Tractors (other than tractors of heading 8709):
8701.10.00 Pedestrian controlled tractors
* * * *
8704 Motor vehicles for the transport of goods:
Other, with compression-ignition internal combustion
piston engine (diesel or semi-diesel):
8704.21.00 G.V.W. not exceeding 5 metric tons
8704.90.00 Other
ISSUE:
Whether the TracHorse is a tractor of heading 8701 or a motor vehicle of heading 8704.
LAW AND ANALYSIS:
Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified 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.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
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Chapter 87, Note 2, HTSUS, defines “tractors” as vehicles constructed essentially for hauling or pushing another vehicle, appliance or load, whether or not they contain subsidiary provision for the transport, in connection with the main use of the tractor, of tools, seeds, fertilizers or other goods. The cited ENs for heading 87.01 describe on p. 1544 both wheeled or track-laying vehicles constructed essentially for hauling or pushing. They may contain subsidiary provision for the transport of tools and other goods, or provision for fitting with working tools as a subsidiary function. Included are pedestrian controlled tractors, described as small agricultural tractors equipped with a single driving axle carried on one or two wheels; like normal tractors, they are designed for use with interchangeable implements which they may operate by means of a general purpose power take-off. They are not usually fitted with a seat and are steered by two handles. The ENs state that similar pedestrian controlled tractors are also used for industrial purposes.
Tractors of heading 8701, pedestrian controlled or otherwise, are designed to drag, push or pull. Any capability they may have to transport goods and operate working tools is clearly subsidiary. On the other hand, the vehicles of heading 8704 are designed and constructed essentially for transport purposes, i.e., to carry or convey. In this case, the TracHorse can operate tools by means of its hydraulics, but its rear-mounted hydraulic tilt bed and 1,000 lb. load rating clearly evidences a primary transport capability. The protestant’s own characterization of the vehicle as a “motorized wheelbarrow with tracks” confirms this. The ruling cited by counsel, HQ 961255, dated November 9, 1998, concerned the Iron Horse, a pedestrian-controlled tracked vehicle consisting essentially of a steel frame extending the long axis of the vehicle, with a front-mounted engine and a fifth wheel mounted at the midpoint of the frame.
HQ 961255 classified this vehicle in subheading 8701.10.00, HTSUS, as a pedestrian controlled tractor. The ruling noted, however, that self-unloading timber carts, motor-operated loaders, and wheeled lattice carts with enclosed load platform, among other accessories, were attached, after importation, by means of the fifth wheel or a drawbar hitch. These accessories transformed the Iron Horse into a transport vehicle. It is clear that, as imported, the Iron Horse conformed to the cited definition in Chapter 87, Note 2. For the stated reasons, HQ 961255 does not govern classification of the TracHorse. HQ 963263, dated May 20, 2000, and cases cited, contains additional discussion of the distinction between headings 8701 and 8704.
HOLDING:
Under the authority of GRI 1, the TracHorse is provided for in heading 8704. It is classifiable in subheading 8704.90.00, HTSUS.
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Because the rate of duty under this provision is the same as the liquidated provision, you should reclassify the TracHorse as indicated and DENY the protest. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division