CLA-2 RR:CTF:TCM W968379 KBR
Lindsay B. Meyer
Daniel J. Gerkin
Venable, LLP
575 7th Street, NW
Washington, DC 20004-1601
RE: Mahindra Project 408 Motor Vehicle
Dear Ms. Meyer and Mr. Gerkin:
This is in reference to your letter on behalf of Global Vehicles USA, Inc., dated July 17, 2006, to the Bureau of Customs and Border Protection (“CBP”), Director, National Commodity Specialist Division, New York, in which you requested a binding ruling concerning the classification of a Mahindra Project 408 motor vehicle under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You also provided photos of the vehicle for our review. The binding ruling request was referred to this office for reply. Consideration was also given to information provided during a teleconference held with you on December 11, 2006 and additional material submitted dated December 10, 2006 and December 22, 2006.
FACTS:
The motor vehicle involved is a prototype. The current name assigned for the vehicle is “Project 408.” Features on the vehicle have changed since the initial filing of the ruling request. Project 408 is a motor vehicle which you refer to as a Sport Utility Vehicle (SUV). According to the information provided, the motor vehicle has a front cab for passengers and a separated open bed in back for cargo. With the enclosed passenger cabin and open cargo bed, the vehicle has the traditional look of a pick-up truck. You state that the specifications of the motor vehicle are:
Wheel base – 119.7 inches
Length – 200.7 inches
Width – 69.7 inches
Height – 76.5 iches
Ground clearance – 8.3 inches
GVWR – 6,945 lbs.
Unladen Weight – 4,740 lbs.
2.2 liter, 4 cylinder common rail fuel-injection diesel engine
Cylinder capacity 2,179 cc
5-Speed manual transmission
Body on frame
Disc brakes
Five passenger
Four doors (Two on each side of the vehicle)
Each door has a window that moves up and down either manually or via
electric motor.
Two permanent rows of seats in the passenger compartment.
Front row seats consist of two separate bucket seats divided by a center console.
Second row seating is a permanently installed bench seat measuring 20 inches transversely, 55 inches longitudinally, and 22 inches in height (33 inches to the top of the headrest).
Carrying box with removable locking cover measuring 59 inches long, 60 inches
wide and 22 inches high; 44 cubic feet capacity
You state that the vehicle has various features typical of a passenger vehicle including a full size passenger compartment which is fully carpeted. Both the front and rear seating areas have audio speakers and vents for providing heating and air conditioning. A radio/CD player is standard and a DVD player is an available option. There is a glove compartment, cup and bottle holders, mobile phone holder, and map pocket for the front seats. There is a mobile phone holder and map pocket for the rear seat. There are arm rests, handholds, seat belts, and a rear seat child tie down hook. There are ash trays in the front seating area.
In the additional material submitted, you state that a change to the design of the vehicle incorporates a hinged and locking cover that will be permanently bolted to the cargo bed may be standard equipment of all Project 408 vehicles. The cargo bed cover will be split into three compartments, one large compartment in the rear and two smaller compartments accessed from the side of the vehicle. You also state that a “traditional, two-door pick-up truck” manufactured by Mahindra uses the same type of chassis as the Project 408. You also state that a sport utility vehicle (“SUV”) manufactured by Mahindra uses a slightly smaller chassis.
You believe that the Mahindra Project 408 motor vehicle should be classified in heading 8703, HTSUSA, as motor cars and other motor vehicles principally designed for the transport of persons.
ISSUE:
Is the Mahindra Project 408 a motor vehicle for the transport of persons under heading 8703, HTSUSA, or for the transport of goods under heading 8704, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRIs 2 through 6.
The HTSUSA provisions under consideration are as follows:
8703 Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars:
* * * * *
Other vehicles with compression-ignition internal combustion piston engine (diesel or semi-diesel):
* * * * *
8703.32.00 Of a cylinder capacity exceeding 1,500 cc but not exceeding 2,500 cc:
8703.32.0010 New
* * * * *
8704 Motor vehicles for the transport of goods:
* * * * *
Other, with compression-ignition internal combustion piston engine (diesel or semi-diesel):
8704.21.0000 G.V.W. not exceeding 5 metric tons
In understanding the language of the HTSUSA, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
You describe the Project 408 vehicle as a sport utility vehicle. As such, you believe it should be classified under heading 8703, HTSUSA, as a motor vehicle principally designed for the transport of persons. You cite Marubeni America Corp. v. United States, 35 F.3d 530 (Fed Cir. 1994) in support of classification in heading 8703. The court in Marubeni discussed how to make the determination as to whether a vehicle should be classified as under heading 8703 or heading 8704, HTSUSA. Marubeni (at 534) held that to be classified under heading 8703, “[b]y the express language of 8703, … it is clear that the vehicle must be designed “more” for the transport of persons than goods.” Further, the court stated that “the vehicle’s intended purpose of transporting persons must outweigh an intended purpose of transporting goods. To make this determination, we find that both the structural and auxiliary design features must be considered.” Id. at 535. The court looked at the many modifications to the design which reduced the cargo space and utility to benefit the passenger comfort. Among these alterations were seats which folded into the cargo area, spare tire location, and a carpeted cargo area. The court also looked at the presence of non-removable reclining rear seats, rear seat stereo outlets, ashtrays, cubbyholes, arm rests, handholds, footwells, seat belts, child seat tie down hooks and operable windows.
First, concerning the auxiliary features, the instant vehicle, Project 408, has many of the passenger comfort features discussed in Marubeni, including: carpeting, permanent rear seating, audio system with speakers for the rear seating, arm rests, hand holds, map pockets, seat belts, child seat tie downs, ash tray in the front seat. However, unlike the vehicle in Marubeni, all of these passenger comfort features are limited to the passenger cab. The features do not extend into the cargo area of the Project 408.
Further, since the court decision over 12 years ago, many of the auxiliary features for passenger comfort discussed above have become standard equipment in motor vehicles universally acknowledged as being classified in heading 8704. See e.g., Ford F150 Pickup truck (www.fordvehicles.com/trucks/f150/features/) and Chevrolet Avalanche Pickup truck (www.chevrolet.com/avalanche/). These passenger comfort features include heated seats, entertainment systems including rear seat speakers and DVD players, zoned climate controls for right/left/rear seat climate control, passenger handholds/armrests/cup holders in front and rear seats, fully carpeted interior, powered opening rear windows, sunroof, seat belts for all seats, and LATCH system for child safety restraints. The auxiliary features are easily included in the vehicle’s passenger cab when it is physically separate from the cargo area, as in the Project 408, since they will not impact on the ability of the vehicle to carry cargo. Therefore, because the auxiliary features are now standard in pickup trucks and specifically for Project 408, the auxiliary features do not extend to the cargo area, we find that the auxiliary features existing in Project 408 do not lead to a decision that the vehicle is intended more for the transport of passengers than cargo.
Second, concerning the structure of the vehicle, CBP has generally ruled that open bed pickup trucks are classified in heading 8704, HTSUSA, as vehicles for the transport of goods. See NY 878894 (October 16, 1992), NY 894929 (February 28, 1994), HQ 082591 (October 31, 1989). You argue that the cargo area for Project 408 is smaller than the typical pickup truck. However, CBP has classified vehicles in heading 8704 even when the cargo area was smaller than in Project 408. HQ 083081 (May 4, 1989) (the cargo area of the vehicle was 39.1 cubic feet compared to the 44 cubic feet cargo area of Project 408).
Looking at the structure of the instant vehicle, you state that Project 408 is built on the same chassis as a “traditional, two-door pick-up truck” manufactured by Mahindra. Project 408 has an open air cargo bed similar to that of any other pickup truck. The open air design allows for easy loading and unloading of goods, including the use of a fork lift. The wheel wells are at the front of the cargo bay and do not take up much of the cargo capacity. Unlike the cargo area in the SUV in Marubeni, the cargo bed is not carpeted and does not have any passenger amenities. Project 408 does not have a unibody construction typical of an SUV. The cargo bay is physically separated with a gap from the passenger cab. This construction is typical of a double cab in a standard pickup truck. The design features changed from the initial filing and still do not seem to be final as to whether the lockable cargo cover will be included or, if included, if the lockable cover will be permanently attached. The pictures submitted of Project 408 did not have the cargo cover. The cover may be an accessory rather than standard equipment or may be easily removable by simply removing a few bolts or clips. Regardless of the lockable cargo cover, the cargo bed will still have the same non-passenger based features as discussed above and will not be similar to the cargo area involved in Marubeni.
You argue that the cargo area is similar to the trunk of a traditional passenger vehicle. We disagree. First, Project 408’s cargo area will be larger than a typical passenger vehicle trunk. Further, with the lockable cargo cover, Project 408 will have multiple exterior access points which is not typical for a passenger vehicle. It will not be finished in the same material or color as the rest of the vehicle, which is also typical of the standard passenger vehicle trunk. Therefore, we find that the structure of Project 408 conforms to that of a vehicle for carrying cargo in heading 8704.
You cite HQ 956345 (February 16, 1995), a case where CBP determined that a Land Rover Defender 90 was classified in heading 8703. The Defender can come in a soft top model allowing for an open air cargo area. The Defender differs significantly from the instant Project 408. The Defender is a much smaller vehicle with a much smaller cargo area. The Defender’s cargo area was fully carpeted with speakers. There was very little usable cargo space in the Defender because the cargo area was restricted by roll bars and wheel wells which extended nearly the entire length of the cargo area. The rear door of the Defender did not allow full access to the cargo area. The doors of the Defender were only 20 inches high making it difficult for higher stacking of materials. Because of these factual differences, we find that HQ 956345 is not applicable.
You also cite a German Customs decision finding that the Ford Explorer Sport Trac should be classified in heading 8703 as a vehicle for the transport of persons. The Ford Explorer Sport Trac has an open bed cargo area. However, CBP is not bound by decisions issued by other governments. This position was clearly stated in T.D. 89-80 supra:
Customs is not bound to abide by another country's rulings. The foreign ruling may have been subject to political realities or domestic regulations which are different from our own. The merchandise at issue in our ruling may not be identical to that in the foreign ruling. In either case, the foreign ruling is unlikely to describe fully the context in which it was issued. Therefore, at best, the foreign ruling is merely instructive of how others may classify like goods.
Further, although we do not have all the details presented to the German Customs office, we note that the cargo area of Project 408 is significantly larger than
that of the Ford Explorer Sport Trac. Therefore, the vehicles are not necessarily comparable.
Based on the foregoing, we find that Project 408 has the structure and auxiliary features normally found in a standard pickup truck and is classified in heading 8704, specifically subheading 8704.21.0000, HTSUSA, 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.”
HOLDING:
Project 408 motor vehicle is classified in heading 8704. It is provided for in subheading 8704.21.0000, HTSUSA, 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 2007 column one, general rate of duty is 25% ad valorum.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch