CLA-2 OT:RR:CTF:TCM H235508 ASM
Port Director
U.S. Customs and Border Protection
Port Office Box 789
Great Falls, Montana 59403-0789
RE: Application for Further Review of Protest No. 3304-12-100022;
Tariff Classification of Vacuum Trucks
Dear Port Director:
This is in reference to a Protest and Application for Further Review (AFR), Protest No. 3304-12-100022, filed on behalf of Clean Harbors Environmental Services, Inc. (Protestant), regarding Custom and Border Protection’s (CBP’s) classification of certain “Vacuum Trucks” under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
FACTS:
The items under consideration have been identified by Protestant as “Vacuum Tank Trucks” and are described in the Protestant’s written submission as follows:
The vacuum trucks at issue are truck-mounted, heavy-duty industrial vacuum loaders designed to pneumatically convey solids, liquids, sludge, or slurry through suction lines typically 2-4” in diameter, with 3” being the norm. The typical pump used in the environmental cleanup industry is a rotary vane vacuum pump, which is a positive-displacement pump that consists of vanes mounted to a rotor that rotates inside of a cavity. These rotary vane vacuum pumps are used in vacuum applications such as the environmental cleanup applications here. The pumps are mounted either directly on the truck with a “power take-off” drive, or on the trailer with a “pony” motor that engages the main engine.
The vacuum trucks are used for street cleanups, sewers, septic systems, individual septic systems, and cleanup of contaminated water and soil. They are also used in the petroleum industry for cleaning of storage tanks and spills, and are an important part of drilling oil and natural gas wells. In that capacity, vacuum trucks are used to remove drilling mud, drilling cuttings, cement, spills, and for removal of brine water from production tanks.
These trucks are specifically designed to transport wet or dry hazardous and non-hazardous materials. They can also transport water to the jobsite, where they utilize hoses and other vacuum apparatus to clean and remove debris and other waste from the jobsite. The design consists of vacuum tanks mounted onto a chassis.
The subject Vacuum Trucks were originally entered under 9801.00.1071, HTSUSA, as U.S. Goods Returned (Duty Free). However, the trucks were liquidated under 8704.23.0000, HTSUSA, which provides for “Motor vehicles for the transport of goods”.
Protestant claims that the subject merchandise should have been classified in heading 8705.90, HTSUSA, which provides for “Special purpose motor vehicles, other than those principally designed for the transport of persons or goods”.
ISSUE: Whether this merchandise is classified as a motor vehicle for the transport of goods in heading 8704, HTSUS, or as a special purpose motor vehicle other than those principally designed for the transport of persons or goods of heading 8705, HTSUS?
LAW AND ANALYSIS:
Initially, we note that this matter 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. (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)).
Protestant asserts that further review of the protest is warranted pursuant to 19 CFR §§174.24(b) on the grounds that this matter involves question of law or fact which have not previously been ruled upon by the Commissioner of Customs or the Customs Court.
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods 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 GRI may then be applied.
The following provisions are under consideration in classifying the subject article:
8704 Motor vehicles for the transport of goods:
Other, with compression-ignition internal combustion
piston engine (diesel or semi-diesel):
8704.23.0000 G.V.W exceeding 20 metric tons
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):
8705.90.0000 Other
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System 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).
In relevant part, the ENs for 8704 provide:
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); . . . lifting or excavating machinery…
(emphasis supplied)
* * *
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).
* * *
The heading also covers:
* * *
(3) Self-loading vehicles equipped with winches, elevating devices, etc.,
but designed essentially for transport purposes
* * *
In relevant part, the ENs for 8705 provide:
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.
* * *
Similarly, this heading excludes self-propelled wheeled machines in which the chassis
and the working machine are specially designed for each other and form an integral
mechanical unit (e.g., self-propelled motor graders). In this case, the machine is not
simply mounted on a motor vehicle chassis, but is completely integrated with a
chassis that cannot be used for other purposes and may incorporate the essential
automobile features above.
In Headquarters’ Ruling Letter (HQ) 958847, dated June 20, 1996, a vacuum tank truck designed to pick-up and transport a variety of liquid wastes, slurries, industrial spills and hazardous liquids was classified in heading 8704, HTSUS. The description of the trucks in HQ 958847 is virtually identical to the vehicles now at issue in this Protest which are also principally designed to collect, remove, and transport waste, liquid, and debris.
Although HQ 958847 classifies substantially similar merchandise, Protestant insists that we have ruled otherwise on numerous occasions. For instance, Protestant cites to (HQ) 954178, dated September 7, 1993, where we classified a six wheeled truck (1985 Model) with a fully enclosed cab and chassis to which a 2,700 liter tank was attached as a special purpose motor vehicle in heading 8705, HTSUS. In classifying this vehicle, CBP noted that the vehicle was equipped with a tank that had been fitted with a mechanical pump, manual pump, wide beam extruders or spray nozzles, spraying hoses and piping with brush attachments, plus a control apparatus. The vehicle was designed to spray water for street cleaning and other general purpose cleaning operations, as well as neutralizing and detoxifying agents to cleanse vehicles, streets and areas that have become biologically, chemically or radiologically contaminated. In this instance, CBP reasoned that the truck was analogous to those motor pump vehicles that are set forth in the ENS to 8705, e.g., lorries used for cleansing streets, gutters, airfield runways, etc., including sprinklers and sprinkle sweepers, among others. Although the vehicle in HQ 954178 was capable of carrying liquid to the job site by way of a tank affixed to the chassis, the primary function of this liquid was to enable the specialized equipment, i.e., pumps, extruders, spray nozzles, spray hoses, and piping with brush attachments, to perform very specific spraying, cleaning, and decontamination operations. Furthermore, there is no specific mention of a vacuum apparatus or a storage tank with which to transport debris, liquid, waste, etc. In contrast, based on the description provided by the Protestant, the vehicles which are the subject of this Protest do not contain sweepers or brush attachments. Rather, they are industrial vacuum loaders that collect, remove, and transport fluids, sludge slurry and other waste through suction lines and vacuum hoses so that it may be transported away from the jobsite. See also New York Ruling Letter (NY) I84386, dated August 2, 2002, where we classified a vacuum sweeper with double side brooms in heading 8705.
Protestant also cites to NY 886868, dated June 8, 1993, where we classified a sewer inspection motor vehicle containing the camera equipment necessary to perform the inspection in heading 8705, HTSUS. While this vehicle transports cameras to and from the jobsite, it is for the sole purpose of inspecting sewer pipes. As such, those trucks are described by the terms of heading 8705, HTSUS, as specialized motorized vehicles principally designed for a purpose other than the transport of goods.
The vehicles at issue in this Protest share none of these specialized features and are principally designed to perform as industrial vacuum loaders that collect fluids, sludge slurry and other waste through suction lines so that it may be transported away from the jobsite and properly disposed of. The collection and transport functions of the instant trucks are more akin to garbage trucks of heading 8704, HTSUS, than to special purpose trucks of heading 8705, HTSUS. See EN 87.04 and HQ 085125, dated November 15, 1989. The vacuum and storage equipment makes up the bulk of the truck. Furthermore, the instant trucks do not contain other cleaning apparatus such as brooms or sweepers. Hence they are classified in heading 8704, HTSUS, as trucks for the transport of goods. See also, HQ 085900, dated February 20, 1990, and HQ 083669, dated May 8, 1989, classifying a mobile security shredder in heading 8704, HTSUS, deeming the principal function of a vehicle that brought the paper shredding equipment to the job site and transported the shredded paper to the landfill or recycling site as a vehicle for the transport of goods in heading 8704, HTSUS.
In view of the foregoing, it is our decision that the Port correctly classified the subject vehicles as “Motor Vehicles for the transport of goods” in heading 8704, HTSUS.
HOLDING:
The subject vehicles were properly reclassified in subheading 8704.23.0000, 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. exceeding 20 metric tons”. The general column one rate of duty at the time of entry was 25 percent 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 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 of 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 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