CLA-2 OT:RR:CTF:TCM H287200 LWF
John F. Farraher, Jr.
Greenberg Traurig, LLP
One International Place
Boston, MA 02110
Re: Revocation of Headquarters Ruling Letter (HQ) H235508, dated August 27, 2014, New York Ruling Letter (NY) N268924, dated October 9, 2015, and HQ 958847, dated June 20, 1996; classification of certain vacuum trucks designed for liquid and semi-liquid waste removal
Dear Mr. Farraher:
This letter is in reference to Headquarters Ruling Letter (HQ) H235508, issued by U.S. Customs and Border Protection (CBP) in response to a Protest and Application for Further Review (AFR), Protest No. 3304-12-100022, filed on behalf of your client, Clean Harbors Environmental Services, Inc. (“Clean Harbors”), regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of certain vacuum trucks designed for liquid and semi-liquid waste removal.
In ruling letter HQ H235508, CBP classified vacuum trucks, consisting of a truck cab and chassis equipped with a tank, a rotary vane pump, and suction hoses, under heading 8704, HTSUS, which provides for, “motor vehicles for the transport of goods.” CBP has reviewed ruling letter HQ H235508, and has determined that the classification analysis set forth in the decision is incorrect. Accordingly, for the reasons set forth below, CBP is revoking ruling letter HQ H235508.
Similarly, CBP has reviewed New York Ruling Letter (NY) N268924, dated October 9, 2015, and ruling letter HQ 958847, dated June 20, 1996, both of which concern the classification of vacuum trucks that are substantially similar to the vehicles at issue in ruling letter HQ H235508. Consistent with the below analysis, CBP has determined that ruling letters NY N268924 and HQ 958847 are also incorrect and therefor require revocation.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), as amended by section 623 of title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of the proposed action was published in the Customs Bulletin, Vol. 51, No. 33, on August 16, 2017. No comments were received in response to the notice.
FACTS:
The vacuum trucks identified in ruling letter HQ H235508 consist of large, specially-designed vehicles that are used for the collection and transport of liquid and semi-solid waste materials. Each truck consists, in relevant part, of a truck cab and chassis equipped with a tank, a rotary vane pump, and suction hoses. During operation, the rotary vane pump is used to generate vacuum pressure inside the vehicle tank, creating a strong vacuum pressure that is suitable for lifting waste material off the ground and into the tank via connected suction hoses.
Due to the extra vacuum pressure produced by the rotary pump, the vacuum truck tank is specially constructed of a thick and heavier steel than the tanks that are used on common tanker trucks. Additionally, the vacuum truck tanks are also constructed with internal baffles that enable the separation of solid waste material from liquid waste, which allows for the separate unloading of solids and liquids. These features enable the vacuum trucks to perform waste clean-up functions, which are typically employed in sewer, septic, environmental, and industrial applications. Similarly, in the petroleum industry, vacuum trucks are often used to remove drilling mud, drilling cuttings, cement, spills, and brine water from production tanks.
In ruling letter NY N268924, CBP provided the following description of the vacuum trucks:
The two (2) items under consideration have been identified as the Foremost FVS1600 and the Tornado which are industrial vacuum loaders. The Gross Vehicle Weight (G.V.W.) of each loader is 62,500 pounds. Industrial vacuum loaders are designed to collect and remove/transport fluids, sludge slurry and other waste. These trucks are specifically designed to transport wet or dry hazardous and non-hazardous materials. They transport water to the jobsite, where they utilize hoses and other vacuum apparatus to clean and remove debris and other waste from the jobsite. Their design consists of vacuum tanks mounted onto a chassis.
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In ruling letter HQ 958847, CBP provided the following description of the vacuum trucks:
The [vacuum trucks] are liquid waste removal systems that consist of a vacuum tank with pump mounted on a truck chassis. The trucks are designed to pick up and transport a variety of liquid wastes, slurries, industrial spills and hazardous liquids. The trucks are generally powered by compression-ignition internal combustion (diesel) engines, although, in limited cases, they are powered by spark-ignition internal combustion piston engines.
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ISSUE:
Whether the vacuum trucks are classifiable under heading 8704, HTSUS, as vehicles for the transport of goods, or under heading 8705, HTSUS, as special purpose motor vehicles.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provision of law for all purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
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 Harmonized System and are generally indicative of the proper interpretation of the heading. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
With respect to the tariff classification of the vacuum truck vehicles at issue, the relevant HTSUS provisions state, as follows:
8704 Motor vehicles for the transport of goods
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)
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The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to heading 87.04, HS, provide in relevant part, as follows:
This heading covers in particular:
[…]
[T]ankers (whether or not fitted with pumps);
[…]
[R]efuse collectors whether or not fitted with loading, compressing, damping, etc., devices.
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The ENs to heading 87.05, HS, provide in relevant part, as follows:
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 good.
This heading includes:
[…]
(4) Lorries (trucks) used for cleansing streets, gutters, airfield runways, etc., (e.g., sweepers, sprinklers, sprinklersweepers and cesspool emptiers).
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In ruling letter HQ H235508, dated August 27, 2014, CBP examined a Protest/Application for Further Review (“Protest/AFR”) filed by Clean Harbors that argued its vacuum trucks issue were classifiable as special purpose motor vehicles under heading 8705, HTSUS, because the vehicles were used for the collection and removal of wet and dry waste materials from industrial sites. At the Protest/AFR level, CBP rejected Clean Harbors’ claim for classification under heading 8705, HTSUS, and affirmed the Port’s classification of the vacuum trucks under heading 8704, HTSUS, as vehicles for the transport of goods.
Specifically, CBP found that the vacuum trucks at issue did not include any special equipment for performing a clean-up function, and notably, lacked additional specialized equipment, such as spray nozzles, spray hoses, or piping with brush attachments that are typical of special purpose vehicles of heading 8705, HTSUS. See CBP Ruling Letter HQ H235508, dated August 27, 2014. By contrast, CBP described that the vacuum trucks as “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.” Id. (Emphasis original.) In light of the identified waste transport function, CBP therefore determined that the vacuum trucks were most-akin to the exemplar, “refuse collectors,” found in EN 87.04, HS, and denied Clean Harbors protest by classifying the vehicles under heading 8704, HTSUS.
Upon review of ruling letter HQ H235508, however, this office has re-evaluated CBP’s classification of the Clean Harbor vacuum trucks and determined that the vehicles are properly classified under heading 8705, HTSUS, as special purpose motor vehicles, other than those principally designed for the transport of persons or goods. The re-examination has revealed additional information relating to the physical characteristics of the vacuum trucks, which render the vehicles suitable for special purposes beyond the transport of goods. Specifically, the vacuum trucks are equipped with a rotary pump that is designed to enable the vehicles to collect both solid and liquid waste from the ground and industrial waste holding containers. Additionally, due to the strong vacuum pressures generated by the rotary pump, the tanks of the vehicles are constructed and reinforced with thicker, heavier steel than the tanks used on common tankers. The tanks also feature internal baffles that are designed to facilitate the separation of solid waste material from liquid waste. These design characteristics contribute to the special construction of the vacuum trucks, which enable the vehicle to perform the non-transport function of waste collection and clean-up.
This office is careful to acknowledge, however, that the presence of a rotary pump alone is not enough to conclude that the vacuum trucks are specially constructed or equipped to perform a non-transport function. For example, the EN to heading 87.04, HS, specifically identifies “tankers (whether or not fitted with pumps)” as a vehicle of heading 87.04. See also EN 87.05, HS (stating that heading 87.05, HS, excludes “self-loading motor vehicles equipped with winches, elevating devices, etc., but which are constructed essentially for the transport of goods.”). In this regard, CBP has determined that the presence of rotary pumps on the Clean Harbor vacuum trucks, when combined with the vehicles’ other design features, contribute to the non-transport function of waste collection and clean-up. See EN 87.05, HS (specifically identifying trucks used for cleansing streets and gutters (for example, sweepers and cesspool emptiers) as performing a non-transport functions). In light of the foregoing, CBP has determined that the vacuum trucks at issue are classifiable in heading 8705, HTSUS, as special purpose motor vehicles.
HOLDING:
By application of GRI 1, the vacuum trucks are classified under heading 8705, HTSUS, specifically in subheading 8705.90.00, which provides for “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): Other.” The 2017 column one, general rate of duty is Free.
Duty rates are provided for you convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at http://hts.usitc.gov/.
EFFECT ON OTHER RULINGS:
CBP ruling letters HQ H235508, dated August 27, 2014, NY N268924, dated October 9, 2015, and HQ 958847, dated June 20, 1996, are hereby REVOKED in accordance with the above analysis.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
Cc: Donald S. Stein, Attorney
Greenberg Traurig, LLP
2101 L Street, NW, Suite 1000
Washington, DC 20037-1593