CLA-2 RR:CTF:TCM H177796 CKG
TARIFF NO: 8436.80.00
Port Director
U.S. Customs and Border Protection
Port of Chicago
5600 Pearl Street Rosemont, IL 60018
Attn: Elizabet Gonzales, Customs Technician
Re: Application for Further Review of Protest No. 3901-11-100675; classification
of Minkomatic 660 and 670 DLA feeder trucks
Dear Port Director,
This is in response to your correspondence dated June 13, 2011, forwarding Application for Further Review of Protest Number 3901-11-100675, filed on behalf of Illinois Mink Wire Company (‘Protestant”), contesting Customs and Border Protection’s (CBP) classification and liquidation of two models of Minkomatic feed trucks under heading 8704 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Motor vehicles for the transport of goods.”
FACTS:
At issue are the Minkomatic 660 and 670 mink feeding vehicles. The
Minkomatic transports and dispenses premixed feed from the feed kitchen to the animals in their pens.
The Minkomatic 660 is a four-wheeled vehicle that is designed for use on
mid to large scale fur farms. This model is powered by a 20hp diesel engine and a single-speed transmission. It measures 103.15 inches in length, 30.7 inches wide, and 55.9 inches tall (including the feedtank), and it weighs 1455 lbs. The vehicle is equipped with a feed tank, which sits on top of the rear wheelbase, and a hydraulic feed pump that delivers feed to mink and fox pens. The Minkomatic 660 has a turning radius of 98 inches and maximum speed of 9mph. The vehicle has no driver’s cabin.
The Minkomatic 670 is a four-wheeled vehicle that is designed for use on
mid to large scale fur farms. This model is powered by 26hp diesel engine and a single speed transmission. It measures 112 inches long, 33.5 inches wide, and 59.8 inches tall (including the feedtank), and weighs 1655 lbs. The vehicle is equipped with a feed tank , which sits on top of the rear wheelbase, and a hydraulic feed pump that delivers feed to mink and fox pens. The 670 has a turning radius of 109.4 inches and a maximum speed of 9 mph. The vehicle has no driver’s cabin.
The subject merchandise was entered on August 21, 2010, in heading 8709, HTSUS, which provides for “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.” On May 20, 2011, the Port of Chicago liquidated the subject entry in heading 8704, HTSUS, which provides for “Motor vehicles for the transport of goods.”
ISSUE:
Whether the Minkomatic is classified in heading 8704, HTSUS, as a motor vehicle for the transport of goods, heading 8709, HTSUS, as a works truck of
the type used in factories, warehouses, dock areas or airports for short distance transport of goods, or heading 8436, HTSUS, as other agricultural machinery.
LAW AND ANALYSIS:
The matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii),(iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 3901-11-100675 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to involve questions of law or fact which had not, at the time the protest was filed, been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. However, subsequent to the entry of the goods at issue in this protest, we stated our views on the classification of substantially similar merchandise in HQ H183882, dated March 31, 2014. In HQ H183882, CBP revoked one ruling classifying three other models of the Minkomatic (the Minkomatic 820, 450 and 409) in heading 8704, HTSUS, as motor vehicles for the transport of goods, in favor of heading 8436, HTSUS, as other agricultural machinery. We restate that analysis here.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
8436: Other agricultural, horticultural, forestry, poultry-keeping or bee-keeping machinery,
including germination plant fitted with mechanical or thermal equipment; poultry incubators and brooders; parts thereof:
* * *
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; …; parts of the foregoing vehicles…:
* * *
Legal Note 1(l) to Section XVI provides as follows:
This section does not cover:
(l) Articles of section XVII
* * * * *
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff 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 87.04 provides, in pertinent part, as follows:
This heading covers in particular:
Ordinary lorries (trucks) and vans (flat, tarpaulin covered, closed, etc.); delivery trucks and vans of all kinds, removal vans; lorries (trucks) with automatic discharging devices (tipping lorries (trucks), etc.); tankers (whether or not fitted with pumps); refrigerated or insulated lorries (trucks); multi floored lorries (trucks) for the transport of acid in carboys, cylinders of butane, etc.; dropframe heavy duty lorries (trucks) with loading ramps for the transport of tanks, lifting or excavating machinery, electrical transformers, etc.; lorries (trucks) specially constructed for the transport of fresh concrete, other than concrete mixer lorries (trucks) of heading 87.05; refuse collectors whether or not fitted with loading, compressing, damping, etc., devices.
The EN for heading 8709 states:
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.
Their turning radius is approximately equal to the length of the vehicle
itself.
* * * * *
The Minkomatic 660 and 670 were liquidated by the Port in heading 8704, HTSUS, as motor vehicles for the transport of goods. Protestant claims classification in heading 8709, HTSUS, as a works truck. However, the Minkomatic is not classified in either headings 8704 or 8709, HTSUS, because it is not principally used for the transport of goods. Headings 8704 and 8709, HTSUS, are provisions governed by “use.” Group Italglass v. United States, 17 CIT 226 (1993). Additional U.S. Rule of Interpretation 1(b). As such, it is the principal use of the class or kind of vehicles to which the Micro Truk belongs that governs classification here. In this context, principal use is that use which exceeds any other single use of the merchandise. In United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (1976), the court set forth factors considered pertinent in determining whether imported merchandise falls within a particular class or kind. These include the general physical characteristics of the merchandise, the expectation of the ultimate purchasers, the channels, class or kind of trade in which the merchandise moves, the environment of sale (i.e., accompanying accessories and the manner in which the merchandise is advertised and displayed), the use, if any, in the same manner as merchandise which defines the class, the economic practicality of so using the import and the recognition in the trade of this use.
Vehicles of headings 8709 and 8704, HTSUS, are principally used only for transport. The principal use of a good in this context is that use which exceeds any other single use of the merchandise. The Minkomatic, however, has two equally important functions: transport and mink feeding. The Minkomatic is a composite machine incorporating both a vehicle and animal feeder. Its physical characteristics are therefore of a dual-use device, designed both to transport and deliver mink feed to the the minks. The remaining Carborundum factors in fact indicate a greater emphasis on the use of the Minkomatic as an agricultural machine; it is advertised and sold to farms for the purpose of mink feeding, and categorized as a farm product by the importer. See http://www.norcar.com/en/farm-products/feeding. The transport function of the Minkomatic thus does not exceed its use as an animal feeder; to the contrary, the Carborundum factors, while not conclusive in this case, suggest the opposite conclusion. Headings 8704 and 8709, HTSUS, only cover the transport function of the Minkomatic; as such, the Minkomatic is beyond the scope of 8709 or 8704 because it is not principally used for the transport of goods.
We further note that heading 8704, HTSUS, primarily describes vehicles for on-road use. The Minkomatic lacks the features that would even legally allow it to be used on roads and other public ways, such as rear hazard lights, mirrors, road tires, turn signals, seat belts, doors, or enclosed cab.
Because the Minkomatic is not classified in heading 8704 or heading 8709, HTSUS, it is not an article of Section XVII, and classification in Section XVI is not precluded by Note 1(l) to Section XVI.
While not principally used for the transport of goods, the Minkomatic is capable of transporting goods and of use as an animal feeder. Both of these functions are captured, at GRI 1, by heading 8436, HTSUS. Heading 8436, HTSUS, provides for “Other agricultural, horticultural, forestry, poultry-keeping or bee-keeping machinery, including germination plant fitted with mechanical or thermal equipment; poultry incubators and brooders; parts thereof.” EN 84.36 notes that “The heading covers machinery, not falling in headings 84.32 to 84.35, which is of the type used on farms (including agricultural schools, co operatives or testing stations), in forestry, market gardens, or poultry keeping or bee keeping farms or the like.”
The Merriam Webster Dictionary Online defines “Agriculture” as “the science, art, or practice of cultivating the soil, producing crops, and raising livestock and in varying degrees the preparation and marketing of the resulting products: farming.” Wikipedia defines livestock as “one or more domesticated animals raised in an agricultural setting to produce commodities such as food, fiber and labor…On a broader view, livestock refers to any breed or population of animal kept by humans for a useful, commercial purpose.” See http://en.wikipedia.org/wiki/Livestock. The Merriam-Webster Dictionary Online similarly defines livestock as “: animals kept or raised for use or pleasure; especially: farm animals kept for use and profit.” See http://www.merriam-webster.com/ dictionary/livestock. The Oxford English Dictionary Online concurs, defining “livestock” as: “Domestic animals kept on a farm for use or profit; esp. cattle, sheep, and pigs.” http://www.oed.com/view/Entry/109349?redirectedFrom=livestock#eid.
The vehicles in question are used on mink and fox farms, which raise minks and foxes for their fur, i.e., for a commercial purpose. As a machine used on a farm, for the purpose of raising livestock, which is not described by headings 8432 to 8435, HTSUS, the Minkomatic falls under heading 8436, HTSUS. Furthermore, heading 8436, HTSUS, also encompasses the transport function of the Minkomatic; vehicles used in agricultural applications are still classified in the various headings covering agricultural machinery, such as headings 8432 and 8436, HTSUS.
This conclusion is consistent with prior CBP rulings. CBP has classified automatic feeding devices in 8436, HTSUS. See HQ 954551, dated August 26, 1993, NY L85882, dated July 14, 2005, NY G82691, dated October 2, 2000. These feeders were stationary and not integrated into a truck; however, trucks performing other agricultural tasks such as spreading, spraying, composting, etc. are also classified as agricultural or forestry machinery. See e.g., HQ 087703, dated January 18 1991; NY F87871, dated June 7, 2000; and NY N030782, dated June 23, 2008. Any agricultural or forestry vehicle can be said to transport its cargo, be it fertilizer, seeds, logs, etc. between locations. The transport function in such machinery is generally treated as subsidiary to the agricultural function.
The Minkomatic is thus described at GRI 1 by heading 8436, HTSUS.
HOLDING:
By application of GRI 1, the Minkomatic 660 and 670 are classified in
heading 8436, HTSUS, specifically subheading 8436.80.00, HTSUS, which provides for
“Other agricultural, horticultural, forestry, poultry-keeping or bee-keeping machinery,
including germination plant fitted with mechanical or thermal equipment; poultry
incubators and brooders; parts thereof: Other machinery.” The 2011 column one, general rate of duty is Free.
Since reclassification as of the merchandise as indicated above will result in the same rate of duty as claimed, you are instructed to ALLOW the protest in full.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public online at www.CBP.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division