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