CLA-2 OT:RR:CTF:TCM H268649 PJG
Robin Puskar
ACB Global Brokerage Inc.
6003 Jet Port Blvd.
Tampa, Florida 33634
RE: Reconsideration of NY N022888; tariff classification of powered wheelbarrow
Dear Ms. Puskar:
This is in response to your electronic ruling request, dated August 3, 2015, filed on behalf of Niche Product Sales LLC, requesting the reconsideration of New York Ruling Letter (“NY”) N022888, dated May 8, 2008. In that ruling, the National Commodity Specialist Division classified a powered wheelbarrow called the “Muck-Truck Pedestrian Dumper” under subheading 8704.31.0020 of the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), 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: G.V.W. not exceeding 2.5 metric tons.” We affirm NY N022888 because it is a motorized vehicle for the transport of goods.
In NY N022888, the “Muck-Truck Pedestrian Dumper” is described as follows:
It is pedestrian-operated, four-wheel drive wheelbarrow powered by either a gasoline-fueled Honda GCV 160 or GXV 160, 5.5 horsepower engine. The Dumper can handle loads up to 551 pounds, weighs 205 pounds, has a maximum speed of 3.5 m.p.h. and has four (4) forward gears and one (1) reverse gear.
You assert that the subject article should be classified under heading 8429, HTSUS, which provides for “Self-propelled bulldozers, angledozers, graders, levelers, scrapers, mechanical shovels, excavators, shovel loaders, tamping machines and road rollers,” or heading 8430, HTSUS, which provides for “Other moving, grading, leveling, scraping, excavating, tamping, compacting, extracting or boring machinery, for earth, minerals or ores; pile-drivers and pile-extractors; snowplows and snowblowers,” for the following reasons: the merchandise does not fit the definition of a “motor vehicle” provided in 40 CFR 85.1703; the merchandise is a motorized wheelbarrow; the merchandise is “primarily used around a construction site;” and the merchandise is not designed to carry people. You also provide the following additional information: “[n]o [s]afety equipment is needed or on this equipment”; and the merchandise is “[n]ot street worthy as it is a walk behind self-propelled piece of equipment.”
Note 1(l) to Section XVI, HTSUS, which includes headings 8429, HTSUS, and 8430, HTSUS, states that Section XVI, HTSUS, does not cover articles of Section XVII, which includes heading 8704, HTSUS. Therefore, if the subject merchandise is classifiable in heading 8704, HTSUS, it is precluded from classification in heading 8429, HTSUS, and heading 8430, HTSUS.
First, we note that the definition of “motor vehicle” found in title 40 of the CFR is not dispositive for purposes of tariff classification. Second, the vehicles of heading 8704, HTSUS, are designed and constructed essentially for transport purposes. According to the description of the Muck Truck, it is a motorized wheelbarrow with a high load capacity. These design features are clear evidence of a primary transport capability. Third, we note that CBP has consistently classified substantially similar merchandise in heading 8704, HTSUS. For example, in NY N022885, dated February 11, 2008, CBP classified in subheading 8704.31.0020, HTSUSA, a walk-behind wheelbarrow that was powered by a gasoline-fueled Honda GXV 160, 5.5 horsepower engine, and could handle loads up to 661 pounds, weighed 330 pounds, and had a maximum speed of 3.72 m.p.h. The merchandise had four (4) forward gears and one (1) reverse gear. Also, in HQ 967422, dated January 7, 2005, CBP classified a lawn utility vehicle called the LUV Cart, which was a three-wheeled, garden utility cart propelled by a battery-powered electric motor. CBP described the LUV Cart as a lawn utility vehicle that steers by a rear-mounted handle, is equipped with a cup holder and hooks for small tools, and moves at a forward speed of 2 mph. Moreover, the ruling noted that the LUV Cart carries up to 200 pounds in its 5 cubic foot bed and is designed to traverse typical backyard inclines up to a 20-degree incline. CBP found that the LUV Cart was prima facie described by heading 8704, HTSUS, and substantially similar to other motorized vehicles that CBP had classified in heading 8704, HTSUS. See e.g., HQ 085917, dated March 1, 1990, HQ 963263, dated May 20, 2000, HQ 964163, dated January 29, 2001, and NY J87972, dated August 20, 2003. In NY H80034, dated April 26, 2001, CBP classified an electric powered wheelbarrow designed for use in various environments, including in construction fields, under head 8704, HTSUS.
On the basis of the description of the merchandise, the prior rulings, and Note 1(l) to Section XVI, HTSUS, we find that the “Muck-Truck Pedestrian Dumper” is a motor vehicle for the transport of goods of heading 8704, HTSUS, and therefore, it is precluded from classification in heading 8429 and 8430, HTSUS. We affirm NY N022888, dated May 8, 2008, which correctly classified the subject merchandise under subheading 8704.31.0020, HTSUSA, as “Motor vehicles for the transport of goods: Other, with spark ignition internal combustion piston engine: G.V.W. not exceeding 5 metric tons: G.V.W. not exceeding 2.5 metric tons.”
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division