CLA-2 RR:CR:GC 961512 JAS
Paul Jackson Rice, Esq.
Arent, Fox, Kintner Plotkin & Kahn, PLLC
1050 Connecticut Avenue, NW
Washington, D.C. 20036-5339
RE: Neighborhood Electric Vehicle (NEV); Motor Vehicles Principally Designed for the Transport of Persons, Heading 8703, Golf Carts and Similar Vehicles, Subheading 8703.10.50; Other Motor Vehicles, Subheading 8703.90.00; Marubeni America Corp. v. U.S., THK America, Inc. v. U.S.
Dear Mr. Rice:
In a letter, dated March 11, 1998, on behalf of Bombardier,
Inc., you request a classification ruling under the Harmonized
Tariff Schedule of the United States (HTSUS), on the Neighborhood
Electric Vehicle (NEV), a product of Canada. Additional facts
and legal arguments were presented at a meeting in our office on
April 15, 1998, which you summarized in a letter, dated April 16,
1998.
FACTS:
The Bombardier Neighborhood Electric Vehicle, NEV or NV, is
a 4-wheel, 2-person, battery-powered, motorized vehicle with the
following dimensions: 100 inches long, 55 inches wide, 61.4
inches high, 65 inch wheel base, and 1,276 lb. operating or curb
weight. The NV has one forward and one reverse gear, a 30-mile
range, maximum speed of 25 mph., and is powered by a 72v, 4kw DC
motor with 6-12v L/A batteries. The retail price is between
$7,000 and $8,000.
The NV has design features such as unibody construction with
glass reinforced plastic body and front and rear steel subframe
sides and roof, four-wheel independent suspension, rack and
pinion steering, dash-mounted function key selector, speedometer/
odometer, front wheel hydraulic drum brakes and rear wheel
regeneration brakes, and street tires with wheel covers. In
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addition, the NV features, as standard equipment, front head
lamps, rear brake lights, horn, laminated glass windshield with
wiper, driver and passenger side rear view mirrors, glove
compartment, adjustable bucket seats with 3-point retractable
seat belts.
The NV comes in two models, the Class-E and the Sport-E,
each with a golf option package that includes low speed (15 mph)
golf mode limiter, molded plastic golf bag holder in the trunk,
10 inch turf tires, passenger side restraint system and golf
cart-type hill brake. Available accessories for both models
include a door kit, am/fm cassette stereo system, tinted
windshield, windshield wiper and washer system, sun visor,
license plate lamp, side/rear rain curtain and full body cover.
You acknowledge that the NV is a motor vehicle as defined by
the National Highway Traffic Safety Administration (NHTSA), as it
does not have an abnormal body configuration that would readily
distinguish it from other vehicles that regularly use the public
roads, and has a maximum attainable speed in excess of 20 mph.
However, the NV does not meet applicable Federal motor vehicle
safety standards. Nevertheless, you contend that the NV is based
on existing golf cart technology with respect to the servo, drive
train, and axles. The accentuated design features of the NV are
cosmetic in nature, making it, in your opinion, simply an
upgraded golf cart. For these reasons, you claim the NV is in
fact a golf cart, or at least, similar to a golf cart, and should
be classified in subheading 8703.10.50, HTSUS, a provision for
golf carts and similar vehicles. You maintain the NV is
designed, manufactured and marketed toward golf cart purchasers;
it is designed to meet applicable golf cart safety and
performance requirements in American National Standards
Institute/National Golf Car Manufacturers Association standard
Z130.1 (1993); and, as the provision for golf carts and similar
vehicles is not a "use" provision, the fact the NV may not be
principally used on golf courses is not legally relevant.
You were tentatively advised by Customs officers at St.
Albans, Vermont, that they do not regard the NV as a golf cart,
nor as being similar to a golf cart, and that subheading
8703.90.00, HTSUS, a provision for other motor vehicles
principally designed for the transport of persons, represents the
correct classification.
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ISSUE:
Whether the NV is a vehicle similar to a golf cart.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (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.
Initially, the parties agree that the NV is not a golf cart.
Rather, the issue is whether it has the identifying
characteristics of and, therefore, resembles or is similar to a
golf cart. We will therefore focus on the construction and
design of the NV as well as its intended function and purpose.
As a preliminary matter, the fact that the NHTSA may regard
the NV as a motor vehicle and therefore subject to applicable
Federal safety requirements is not a relevant consideration as
non-tariff statutes and regulations are not dispositive for
purposes of tariff classification. See Marubeni America Corp.,
v. United States, 821 F.Supp. 1521 (1993). The design features
of the NV that we view as relevant are inherently structural.
The NV has unibody construction with glass-reinforced plastic
body and front and rear steel subframe, sides and roof. This is
a body type that makes the NV readily indistinguishable from
other traditional motor vehicles. Non-enclosed sides and rear,
absence of a front or rear windshield, a single bench seat, and
canopy roof, on the other hand, are design features common to
golf carts or golf cart-like vehicles. The NV has four-wheel
independent suspension and rack and pinion steering, which are
automotive design concepts. Likewise, the speedometer/odometer,
front head lamps, laminated glass windshield with wiper, dual
rear view mirrors, and adjustable 2-person bucket seats with 3-point retractable seat belts are traditional automotive design
features. Auxiliary features such as wheel covers, available
doors, am/fm cassette stereo system, tinted windshield and
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license plate lamp, even the burgundy and jade colors, clearly
relate to visual appeal and passenger comfort, and are automotive
design features.
As to purpose and function, an importer's catalogs and
advertisements are not dispositive of the correct classification
of goods under the HTSUS, but they are certainly probative of the
way the importer views the goods and of the market he intends to
reach. See THK America, Inc. v. United States, Slip Op. 93-207
(1993). Submitted brochures depict the NV as a low speed, zero-emission alternative to the traditional automobile. Advertising
literature portrays multiple roles for the NV as the perfect
vehicle for the neighborhood, the golf course, country club,
anywhere in a planned/suburban community with low density traffic
and low speed zones. The very name, neighborhood vehicle,
characterizes the NV's scope of intended use. That the NV can be
used on golf courses is undeniable. However, while traditional
golf carts and golf cart-like vehicles can be driven on the
public roadways, they are not designed primarily for such use.
On the other hand, the available information strongly suggests
that the primary function and purpose for which the NV was
designed is to traverse the public roads with use on golf courses
but one possible use.
The overall design features of the NV, together with
information as to the function it serves and its scope of use,
compels us to conclude that it is substantially similar to
traditional motor vehicles for the transport of persons, and is
not a golf cart or a vehicle similar thereto.
HOLDING:
Under the authority of GRI 1, the Bombardier Neighborhood
Electric Vehicle, NEV or NV, is provided for in heading 8703. It
is classifiable in subheading 8703.90.00, HTSUS, as other motor
vehicles.
Sincerely,
John Durant, Director
Commercial Rulings Division