CLA-2 OT:RR:CTF:TCM H235561 LWF
Port Director
Service Port of Great Falls
P.O. Box 789
Great Falls, MT 59403-0789
Attn: Tami Simmons, Import Specialist
RE: Application for Further Review of Protest No. 3304-12-100021; Classification of tracked vehicles from Canada
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 3304-12-100021, timely filed on April 18, 2012, by Clean Harbors Environmental Services, Inc. (“Clean Harbors”). The AFR concerns U.S. Customs and Border Protection’s (CBP) classification of two models of tracked vehicles under the Harmonized Tariff Schedule of the United States (HTSUS). In reaching this decision, we have considered Clean Harbors’ supplemental submission, via email dated November 14, 2013, containing a revised factual description of the merchandise at issue.
FACTS:
The merchandise at issue consists of two models of rubber track crawler carrier vehicles manufactured by Morooka Co., Ltd. (“Morooka”), the Morooka MST 300VD and the Morooka MST 800VD (“the carriers”; pictured below at Figs. 1 and 2). The carriers are described as open-cab, rubber-tracked crawlers that are designed to move cargo over environmentally sensitive, off-road terrain. The carriers feature a metal tilt-cargo deck with collapsible sides. Compared to similar wheeled vehicles, the carriers’ rubber tracks offer low ground pressure and improved traction on uneven terrain and non-improved surfaces. The Morooka website states that the carriers are designed for use in a wide range of applications and can be optionally fitted with a variety of specialized attachments, for example: water tanks, digger derricks, drill rigs, cement mixers, welders, specialty dump bodies, scissor lifts, and personnel carriers.
The carriers are operated by single-hand control levers and feature hydrostatic transmissions that allow for increased maneuverability by eliminating the need for clutch and gear controls. Technical specifications available on Morooka’s website state that that MST300VD and MST800VD are capable of operating at a maximum speed of 9.0 and 11.0 kph, respectively. The gross weight of an empty MST300VD is listed at 2,200 kg, and the carrier is capable of carrying a maximum payload of 2,500 kg. The gross weight of an empty MST800VD is listed at 6,500 kg, and the carrier is capable of carrying a maximum payload of 4,800 kg. Both carriers feature a minimum turning radius that is approximately one half of the length of each vehicle.
Fig. 1: MST-300VD/VDR Fig. 2: MST-800VD
In this case, Clean Harbors states that prior to importation into the United States, the carriers are shipped to Canada, where metal water tanks are specially designed and manufactured to be fitted onto the tilt-cargo deck of the carriers. However, we are careful to note that the water tanks are imported separately from the carriers—after their manufacture in Canada, the tanks are detached from the tilt-cargo deck before Clean Harbors enters the carriers into the United States. Additionally, although Clean Harbors’ initial Protest and AFR submission emphasizes that the carriers are used with hoses, pumps, and washing units for emergency environmental clean-up applications, we are careful to note that Clean Harbors subsequently amended the merchandise description, via electronic communication dated November 13, 2013, and in their condition as imported, the carriers possess no such equipment or attachments.
The instant Protest and AFR concerns two entries of the Morooka carriers that Clean Harbors entered at the Service Port of Great Falls on August 5, 2011 and August 16, 2011, under the claimed classification subheading 8705.90.00, HTSUS, which provides for “Special purpose motor vehicles, other than those principally designed for the transport of persons or goods (for example, wreckers, mobile cranes, fire fighting vehicles, concrete mixers, road sweepers, spraying vehicles, mobile workshops, mobile radiological units): Other.” Clean Harbors’ August 5th entry consists of one Morooka MST800VD carrier and one Morooka MST300VD carrier. The August 16th entry consists of two Morooka MST800VD carriers.
On September 8, 2011, CBP issued a Proposed CF-29 Notice of Action (“NOA”) concerning, in pertinent part, Clean Harbors’ August 5, 2011 entry of the carriers and indicated CBP’s proposed reclassification of the carriers under subheading 8704.23.00, HTSUS, which provides for “Motor vehicles for the transport of goods: Other, with compression-ignition internal combustion piston engine (diesel or semi-diesel): G.V.W. exceeding 20 metric tons.” CBP did not receive a response from Clean Harbors to the Proposed NOA, and based on a review of the invoice documentation for the August 5th entry, CBP issued a CF-29 NOA, dated October 7, 2011, reclassifying the Morooka MST800VD under subheading 8704.22.50, HTSUS, which provides for “Motor vehicles for the transport of goods: Other, with compression-ignition internal combustion piston engine (diesel or semi-diesel): G.V.W. exceeding 5 metric tons but not exceeding 20 metric tons: Other,” and the Morooka MST300VD under subheading 8704.31.00, HTSUS, which provides for “Motor vehicles for the transport of goods: Other, with spark-ignition internal combustion piston engine: G.V.W. not exceeding 5 metric tons.” Accordingly, on October 21, 2011, CBP liquidated the August 5th entry of one Morooka MST800VD carrier and one Morooka MST300VD carrier under subheadings 8704.22.50 and 8704.31.00, HTSUS, respectively; additionally, CBP liquidated the August 11th entry of two Morooka MST800VD carriers under subheading 8704.23.00, HTSUS.
Clean Harbors timely filed this Protest AFR on April 18, 2012, and asserts that the correct classification of the Morooka carriers is under subheading 8705.90.00, HTSUS.
ISSUE:
Whether the Morooka carriers are classified in heading 8704, HTSUS, as motor vehicles for the transport of goods; heading 8705, HTSUS, as special purpose motor vehicles, other than those principally designed for the transport of persons or goods; or 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.
LAW AND ANALYSIS:
Initially, we note that 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 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. 1704-12-100256 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or the Customs courts.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provision of law for all purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS subheadings under consideration are the following:
8704 Motor vehicles for the transport of goods:
8705 Special purpose motor vehicles, other than those principally designed for the transport of persons or goods (for example, wreckers, mobile cranes, fire fighting vehicles, concrete mixers, road sweepers, spraying vehicles, mobile workshops, mobile radiological units):
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 not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to heading 87.04, HS, provides, in relevant 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 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).
This heading also covers:
(1) Dumpers, sturdily built vehicles with a tipping or bottom opening body, designed for the transport of excavated or other materials. These vehicles, which may have a rigid or articulated chassis, are generally fitted with off-the-road wheels and can work over soft ground. Both heavy and light dumpers are included in this group; the latter are sometimes characterised by a two-way seat, two seats facing in opposite directions or by two steering wheels, to enable the vehicles to be steered with the driver facing the body for unloading.
…
Subheading Explanatory Notes.
Subheading 8704.10
These dumpers can generally be distinguished from other vehicles for the transport of goods (in particular, tipping lorries (trucks)) by the following characteristics:
- the dumper body is made of very strong steel sheets; its front part is extended over the driver’s cab to protect the cab; the whole or part of the floor slopes upwards towards the rear;
- in some cases the driver’s cab is half-width only;
- lack of axle suspension;
- high braking capacity;
- limited speed and area of operation;
- special earth-moving tyres;
- because of their sturdy construction the tare weight/payload ratio does not exceed 1 : 1.6;
- the body may be heated by exhaust gases to prevent materials from sticking or freezing.
* * * * *
The EN to heading 87.05, HS, provides, in relevant part, as follows:
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.
* * * * *
The EN to heading 87.09, HS, provides, in relevant part, as follows:
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.
…
Parts of this heading include:
…
(2) Bodies, platforms, detachable sides, tipping bodies.
…
The heading excludes:
…
(c) Dumpers (heading 87.04).
* * * * *
Protestant asserts in its memorandum supporting AFR that the carriers are properly classified in heading 8705, HTSUS, as special purpose motor vehicles. Heading 8705, HTSUS, provides for “Special purpose motor vehicles, other than those principally designed for the transport of persons or goods (for example, wreckers, mobile cranes, fire fighting vehicles, concrete mixers, road sweepers, spraying vehicles, mobile workshops, mobile radiological units)” (emphasis added), and the EN to heading 87.05, HS, states that the 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.” (Emphasis original).
As an initial matter, we note that it is well settled law that merchandise is classified according to its condition when imported. Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994) (citing United States v. Citroen, 223 U.S. 407, 414-15, 56 L. Ed. 486, 32 S. Ct. 259 (1911)). In their condition as entered, each of the Morooka carriers possesses a metal, tilt-cargo rear deck with collapsible sides that is specifically designed for the transport of goods and cargo. Technical specifications on Morooka’s website state that the MST 300VD and MST 800VD are capable of hauling a maximum cargo of 2,200 kg and 4,800 kg, respectively. Furthermore, as clarified in Clean Harbors’ November 14, 2013 supplemental merchandise description, the imported carriers do not possess any accessories or specialized equipment that would enable the vehicles to perform any function beyond the conveyance of cargo over environmentally sensitive, off-road terrain. Consequently, because the carriers are principally designed for the transport of goods, heading 8705, HTSUS, does not describe the instant merchandise, and the carriers are prima facie classifiable elsewhere in the Nomenclature.
The remaining headings under consideration—headings 8704 and 8709, HTSUS—provide, respectively, for motor vehicles for the transport of goods and certain self-propelled works trucks of the type used in factories, warehouses, dock areas, or airports for the short-distance transport of goods. GRI 1 states, in relevant part, that “classification shall be determined according to the terms of the headings” (emphasis added), works trucks of heading 87.09, HS, must be “of the type used in factories warehouses, dock areas or airports.” See also EN 87.09 (“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.”).
Here, although the tilting cargo platforms make the instant Morooka carriers suitable for the short-distance transport of goods, we note that the vehicles are primarily identified by their rubber tracks that offer low ground pressure and improved traction on uneven terrain and non-improved surfaces. Additionally, the Morooka website advertises its carriers for “soft, sandy, and rough terrain,” and although it displays numerous pictures of the carriers at use in off-road locations and on unimproved surfaces, the advertising pictures do not show the carriers at use in factories, warehouses, dock areas, or airports. See “Morooka Products: Carriers,” http://www.morooka.co.jp/en/products/vd/. Based on these features, we conclude that the Morooka carriers do not belong to the class or kind of vehicles used in factories, warehouses, dock areas, or airports. Consequently, we find no support for identifying the Morooka carriers as belonging to the type of works trucks described by heading 8709, HTSUS.
Heading 8704, HTSUS, provides for “Motor vehicles for the transport of goods,” and the EN to heading 87.04, HS, states that the classification of 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.”
The U.S. Court of International Trade (CIT) has provided guidance on the classification of certain self-propelled, track type all-terrain vehicles. F.W. Myers, Inc. v. United States, 12 C.I.T. 566 (1988). In F.W. Myers, the CIT considered whether the primary function of the Bombardier BR-200—consisting of an engine, drive train, and chassis with tracks for flotation and traction in snow and mud, a cab for passengers and a transporting trailer for equipment and materials, and a flat platform behind the cab for the transportation of cargo—directed proper classification of the vehicle under item 692.11 of the Tariff Schedule of the United States (TSUS) (the precursor to headings 8703 and 8704, HTSUS), as a vehicle for the transport of persons or articles, or under item 692.35, TSUS (the precursor of heading 8701, HTSUS), as tractors whether or not equipped with power take-offs, winch, or pulleys. Like the instant Morooka carriers, the Bombardier BR-200 was designed to transport cargo at low ground pressure of uneven, non-improved terrain and was capable of turning within its own length. Finding that the BR-200 was not described by the common meaning of “tractor” as a motor vehicle primarily used for pushing and pulling, the CIT concluded that the BR-200’s rated cargo capacity and ability to haul a payload of at least 1,400 lbs. “persuasively shows that the primary function or chief use of the BR-200 is to transport persons or articles.” F.W. Myers, 12 C.I.T. 566 at 574. Consequently, it classified the BR-200 under TSUS item 692.11, as “motor vehicles for the transport of persons or articles.” Id. at 575.
We note that while prior TSUS cases may be instructive in interpreting identical language in the HTSUS, they are not dispositive. H.R. Conf. Rep. No. 100-576, at 549-50 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1582-83. As explained in the House Conference Report accompanying the Omnibus Trade and Competitiveness Act of 1988, which enacted the HTSUS:
[i]n light of the significant number and nature of changes in nomenclature from the TSUS to the HTSUS, decisions by the Customs Service and the courts interpreting the nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTSUS. Nevertheless, on a case-by-case basis prior decisions should be considered instructive in interpreting the HTSUS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUS.
The text of item 692.11, TSUS, “Motor vehicles (except motorcycles) for the transport of persons or article,” is preserved in HTSUS headings 8703 and 8704, HTSUS, and as detailed below, we observe that CBP has previously classified tracked vehicles for the transport of goods in heading 8704, HTSUS, in a manner consistent with the CIT’s classification of the BR-200.
In HQ 953715, dated July 16, 1993, CBP classified a pedestrian-controlled, tracked vehicle designed to transport loads at slow speeds over short distances in heading 8704, HTSUS, because “it is apparent that the [vehicle] is principally designed to carry goods.” There, CBP rejected classification of the merchandise in heading 8709, HTSUS, as works trucks, because advertising literature showed the tracked vehicle primarily operating on off-road terrain and did not support a conclusion that it belonged to a class or kind of vehicles used in factories, warehouses, dock areas or airports. See also HQ 964163, dated January 29, 2001 (classifying a pedestrian-controlled, tracked vehicle equipped with a rear-mounted, hydraulic tilt cargo platform with drop-down, removable side panels in heading 8704, HTSUS, based on its “primary transport capability,” as evidenced by the hydraulic tilt platform and the vehicle’s 1,000 lbs. cargo load rating). Consequently, we find that HQ 953715 and HQ 964163 demonstrate that the presence of a hydraulic tilt cargo platform, a high cargo load rating, and specific handling characteristics are important features in determining whether a tracked vehicle is designed for the transport of goods.
Similarly, in NY L83083, dated March 8, 2005 (correcting clerical errors involving classification at the subheading-level in rulings NY 685000, dated December 14, 2000, and NY F85189, dated April 14, 2000), CBP classified in heading 8704, HTSUS, several models of tracked vehicles equipped with flat cargo decks. Like the Morooka carriers at issue here, CBP stated in NY L83083 that the tracked vehicles were imported without attached implements or accessories; however, CBP also noted that the cargo decks were intended to be permanently fitted with various specialized tools, such as digger derricks, lift buckets, backhoes, and augers. As such, NY L83083 provides support to the general proposition that the post-importation attachment or installation of accessories and tools does not affect the classification of tracked vehicles when they are entered into the United States.
Turning again to the instant Morooka carriers, we find that technical specifications and performance characteristics of the carriers demonstrate that the vehicles are designed for the transport of goods. As stated above, the carriers are described as open-cab, rubber-tracked crawlers that are designed to move cargo over environmentally sensitive, off-road terrain. Similar to the vehicles discussed in rulings HQ 953715 and HQ 964163, each Morooka carrier features a metal tilt-cargo deck with collapsible sides, making the vehicles useful for hauling loads or oversized cargo, but unsuitable for transporting people. The MST300VD is rated as capable of carrying a maximum payload of 2,500 kg, and the MST800VD is rated as capable of carrying a maximum payload of 4,800 kg. The carriers’ rubber tracks offer low ground pressure and improved traction on uneven terrain and non-improved surfaces, and the MST300VD and MST800VD are capable of operating at a maximum speed of 9.0 and 11.0 kph, respectively. Like the Bombardier BR-200 discussed in F.W. Myers, the Morooka carriers also feature a small turning radius that is approximately one half of the length of each vehicle. Finally, we note that like the tracked vehicles classified in heading 8704, HTSUS, in ruling NY 685000, the Morooka carriers are not equipped with attachments or specialized tools at the time of importation. Considered in total, the presence of a hydraulic tilt-cargo deck, maximum payload ratings, small turning radius, and lack of specialized attachments or tools strongly supports a conclusion that the Morooka carriers are designed for the conveyance and transport of cargo. As such, we find that the Morooka carriers are prima facie described by the text of heading 8704, HTSUS, as motor vehicles for the transport of goods, pursuant to GRI 1.
Having established that the Morooka carriers are properly classified in heading 8704, HTSUS, it is important to note that EN 87.04, HS, specifically distinguishes certain “dumpers” motor vehicles that are to be classified separately at the 6-digit subheading level (subheading 8704.10, HS) from other motor vehicles for the transport of goods. Consequently, we must also determine whether the Morooka carriers are properly classified as “dumpers” of subheading 8704.10, HS, or as other motor vehicles elsewhere in heading 87.04, HS.
EN 87.04, HS, states that the heading includes “dumpers,” defined by the EN as, “sturdily built vehicles with a tipping or bottom opening body, designed for the transport of excavated or other materials.” Additionally, the definition of “dumpers” in EN 87.04, HS, provides that dumpers of subheading 8704.10, HS, are “generally fitted with off-the-road wheels and can work over soft ground.” As such, we find that classification of the Morooka carriers as dumpers in subheading 8704.10, HTSUS, is initially supported by the fact that the carriers possess metal tilt-cargo decks and are designed to operate on uneven terrain and non-improved surfaces. However, prior to concluding that the Morooka carriers are most-precisely described as dumpers of subheading 8704.10, HTSUS, we must first consider whether the carriers share the specific physical characteristics of “dumpers,” as described in Subheading Explanatory Note to 8704.10, HS.
Narrowing the definition of “dumpers” previously set forth in EN 87.04, supra, Subheading Explanatory Note to 8704.10, HS, states that “dumpers can generally be distinguished from other vehicles for the transport of goods (in particular, tipping lorries (trucks)).” Specifically, Subheading EN to 8704.10, HS, provides that tipping lorries (trucks) and other vehicles for the transport of goods substantially differ from dumpers of subheading 8704.10, HS, because they do not share the following characteristics typical of dumpers:
- the dumper body is made of very strong steel sheets; its front part is extended over the driver’s cab to protect the cab; the whole or part of the floor slopes upwards towards the rear;
- in some cases the driver’s cab is half-width only;
- lack of axle suspension;
- high braking capacity;
- limited speed and area of operation;
- special earth-moving tyres;
- because of their sturdy construction the tare weight/payload ratio does not exceed 1 : 1.6;
- the body may be heated by exhaust gases to prevent materials from sticking or freezing.
Comparing the technical specifications of the instant Morooka carriers against the dumper characteristics listed above, it is clear that although the Morooka carriers and dumpers of subheading 8704.10, HTSUS, share certain characteristics enumerated in Subheading EN 8704.10, HS—namely, a half-width cab, limited maximum speed, and similar weight/payload ratios, such similarities do not supersede the fundamental design differences that distinguish the tilt-cargo decks of the Morooka carriers from dumper bodies of dumper vehicles of subheading 8704.10, HTSUS. The first characteristic listed in Subheading EN 8704.10, HS, describes dumpers of which, “the dumper body is made of very strong steel sheets; its front part is extended over the driver’s cab to protect the cab; the whole or part of the floor slopes upwards towards the rear.” Here, by contrast, the metal tilt-cargo decks of the Morooka carriers do not form permanent dumper bodies, but are instead constructed of collapsible panels that fold down along the deck sides to expose a flat cargo bed. Unlike the dumper bodies described by Subheading EN 87.04, HS, the Morooka tilt-cargo decks are flat and do not slope upwards towards the rear of the vehicles.
Moreover, the Morooka tilt-cargo decks do not extend over the driver’s cab to protect the operator. Pictures of the Morooka carriers indicate that the collapsible panels and front part of the tilt-cargo decks rise only to the level of a seated driver’s torso, and whereas the cab of the MST300VD is entirely unshielded, the cab of the MST800VD is only partially enclosed by a roof panel that is attached directly to the MST800VD cab. See Figs 1 and 2. Unlike dumper bodies that fully separate the driver from the dumper cargo by extending over the driver’s cab, the Morooka carriers tilt-cargo decks only partially separate the driver from the loaded cargo, and therefore, offer limited protection to the driver. Consequently, we conclude that the physical characteristics of the tilt-cargo decks substantially differ from the primary characteristics of “dumper bodies” described by Subheading EN 87.04, HS.
Because the collapsible sides of the Morooka tilt-cargo decks do not extend over the driver cab and do not form a deck floor that slopes upwards towards the rear of the vehicle, the Morooka carriers substantially differ from dumpers of subheading 8704.10, HTSUS, and must be classified elsewhere in heading 8704, HTSUS. The Morooka MST 300VD has a gross weight of 2,200 kg (2.2 metric tons); as such, it is most-specifically provided for in subheading 8704.21.00, HTSUS, as “Motor vehicles for the transport of goods: Other, with compression-ignition internal combustion piston engine (diesel or semi-diesel): G.V.W. not exceeding 5 metric tons.” The gross weight of the Morooka MST 800VD is listed as 6,500 kg (6.5 metric tons); as such, the vehicle is most-specifically provided for in subheading 8704.22.50, HTSUS, as “Motor vehicles for the transport of goods: Other, with compression-ignition internal combustion piston engine (diesel or semi-diesel): G.V.W. exceeding 5 metric tons but not exceeding 20 metric tons: Other.”
HOLDING:
By application of GRI 1, Morooka MST 300VD and Morooka MST 800VD carriers are classified in heading 8704, HTSUS. Specifically, the MST 300VD is classifiable in subheading 8704.21.00, HTSUS, which provides for “Motor vehicles for the transport of goods: Other, with compression-ignition internal combustion piston engine (diesel or semi-diesel): G.V.W. not exceeding 5 metric tons.” The column one, general rate of duty is 25% ad valorem. The MST 800VD is classifiable in subheading 8704.22.50, HTSUS, which provides for “Motor vehicles for the transport of goods: Other, with compression-ignition internal combustion piston engine (diesel or semi-diesel): G.V.W. exceeding 5 metric tons but not exceeding 20 metric tons: Other.” The column one, general rate of duty is 25% ad valorem. You are instructed to DENY the protest.
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 re-liquidation 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 on the CBP Home Page on the World Wide Web at http://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