CLA-2: OT:RR:CTF:TCM
H250827 LOR
Port Director
U.S. Customs and Border Protection
Pembina (Area Port)
112 W. Stutsman
Pembina, ND 58271
ATTN: Tracy Coffield (Import Specialist)
RE: Application for Further Review of Protest No. 3401-13-100154; Classification of a 2002 Mack Winch Truck
Dear Mr. Espesth:
This is our decision on Protest 3401-13-100154, filed against your classification of a truck, imported on December 3, 2012 under subheading 9801.00.10 of the Harmonized Tariff Schedule of the United States (“HTSUS”) as other goods returned/Free and subsequently liquidated under subheading 8704.23.00, HTSUS.
FACTS:
The article under protest is described as a “2002 Mack Winch Truck, model 600” (hereinafter, “truck”). Pictures and other descriptions depict a road tractor with a fifth-wheel coupling, an enclosed cab, a chassis, and a rear cargo deck. The truck is equipped with a winch, which appears to be centered on the rear cargo deck nearest to the cab.
On April 9, 2013, the port submitted a Request for Information (CBP Form 28) to First Choice Energy Services, LLC (“importer”), advising that the information contained in the entry documents was not sufficient to substantiate the importer’s claim of U.S. Goods returned. CBP directed the importer to provide an original manufacturer’s affidavit and additional information, consistent with the provisions of title 19, United States Code, Section 1509 [19 U.S.C. § 1509] and 19 C.F.R. § 163.6.
The importer responded by providing copies of two U.S. Department of Transportation Declaration (“DOT”) forms: Importation of Motor Vehicles and Motor Vehicle Equipment Subject to Federal Motor Vehicle Safety, Bumper and Theft Prevention Standards form and Bond to Ensure Conformance with Motor Vehicle Safety and Bumper Standards and a copy of U.S. Environmental Protection Agency (“EPA”) form: Importation of Motor Vehicles and Motor Vehicle Engines Subject to Federal Air Pollution Regulations. The importer did not provide the original manufacturer’s affidavit as was requested by local CBP. The importer stated:
[T]he truck that was imported by [firstchoice] on November 27, 2012 was a winch truck with a 5th wheel plate. There is no deck on the truck, just a catwalk for safe access to the winch. There was no trailer imported at that time, if the term “trailer” was used, it must have been in reference to the catwalk on the frame of the truck that the operator to access the winch.
On May 14, 2013, CBP submitted a Notice of Action, CBP Form 29, to the importer, proposing to reclassify the imported truck under subheading 8704.23.00/25%/MPF. The importer also submitted pictures of the truck in response to the request.
On June 6, 2013, CBP issued a CBP Form 29 to the importer, explaining that the pictures provided in response to the May 14, 2013 CBP Form 29 show the truck used in the transportation of goods and that the truck would be reclassified as proposed under 8704.23.00/25%/MPF. On June 21, 2013, CBP liquidated the entry under subheading 8704.23.00, HTSUS.
In its protest, the importer claims that the truck should be classified as a special purpose vehicle under subheading 8705.90.00, HTSUS. The importer maintains that the trailer is too small to transport goods; that the winch takes up the whole trailer; and that the truck can only be used as special purpose vehicle [performing] such [tasks] as dragging and pulling heavy goods through the mud.
ISSUE:
Whether the truck is (1) a tractor of heading 8701, HTSUS; (2) a motor vehicle principally designed for the transport of goods under heading 8704, HTSUS; or (3) a motor vehicle principally designed as a special purpose vehicle under heading 8705, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on November 8, 2013, within 180 days of liquidation on June 21, 2013, pursuant to 19 U.S.C. §1514(c)(3). Further review of Protest 3401-13-100154 was properly accorded to protestant pursuant to 19 C.F.R. §174.24. In accordance with Section 174.24(b), the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order. The following provisions are under consideration:
8701 Tractors (other than tractors of heading 8709);
8701.20.00 Road tractors for semi-trailers
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8704 Motor vehicle for the transport of goods:
8704.23.00 G.V.W exceeding 20 metric tons
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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):
8705.90.00 Other
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Chapter 87, Note 2, provides the following:
2. For the purposes of this chapter, "tractors" means vehicles constructed essentially for hauling or pushing another vehicle, appliance or load, whether or not they contain subsidiary provision for the transport, in connection with the main use of the tractor, of tools, seeds, fertilizers or other goods.
Machines and working tools designed for fitting to tractors of heading 8701 as interchangeable equipment remain classified in their respective headings even if presented with the tractor, and whether or not mounted on it.
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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. The CBP believes the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 87.04 states, in pertinent part, the following:
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); refrigerated or insulated lorries (trucks); multi-floored lorries (trucks) for the transport of acid in carboys, cylinders of butane, etc.; dropframe heavy-duty lorries (trucks) with the loading ramps for the transport of tanks, lifting or excavating machinery, electrical transformers, etc.; lorries (trucks) specially constructed for the transport of fresh concrete, other than concrete-mixer lorries (trucks) of heading 87.05; refuse collectors whether or not fitted with loading, compressing, damping, etc., devices.
Heading 87.05, HTSUS, encompasses special purpose motor vehicles, other than those principally designed for the transport of persons or goods (for example, breakdown lorries, crane lorries, fire-fighting vehicles, concrete mixer lorries, road sweeper lorries, spraying lorries, mobile workshops, mobile radiological units). Among the vehicles included in heading 8705 are:
(1) Motor breakdown lorries consisting of a lorry chassis, with or without a floor, equipped with lifting gear such as non-rotating cranes, trestles, pulleys or winches, designed for lifting and towing broken-down vehicles.
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The word “haul” is defined as: “to pull or drag (something) with effort”.
The word “winch” is defined as, “a machine that has a rope or chain and that is used for pulling or lifting heavy things.”
A breakdown lorry is another name for a tow truck. A tow truck is truck with winches and hoist mechanisms for freeing stuck vehicles and towing stuck, wrecked or disabled vehicles.
In this case, the imported truck is a tractor. Based on the pictures provided, the truck is fitted with a fifth-wheel, a coupler that was designed to attach to a king-pin on a trailer. It is equipped with winch for hauling another vehicle. Hence, the merchandise is described by the terms of heading 8701, HTSUS and the EN to that heading. The merchandise could only be used to tow another vehicle once it has been attached to a trailer.
Classification under heading 8704, HTSUS, is not appropriate because the imported truck was not designed for the transport of goods. While the truck may be used to transport a broken-down vehicle from one place to another, as imported the trucks primary purpose is to be attached to a trailer. Hence, as imported, the winch is of limited use because the trailer bed without an additional trailer is insufficient for hauling most vehicles. It is clear that its primary purpose is for winching and hauling a vehicle. As imported, the truck’s primary purpose is to be attached to a trailer for hauling.
The truck appears to have been specifically designed for “dragging and pulling” heavy articles such as trailers and semi-trailers. Therefore, classification under heading 8705, HTSUS, is not appropriate.
HOLDING:
Under the authority of GRI 1, the 2002 Mack Winch Truck, model 600 is provided for in heading 8701, HTSUS. Specifically, classification of the truck is in subheading 8701.20.00, HTSUS, which provides for “Tractors (other than tractors of heading 8709): Road tractors for semi-trailers.”
You are instructed to deny the protest except to the extent reclassification as indicated above results in a partial allowance.
Pursuant to Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should mail this decision, together with the Customs Form 19, to the protestant, through its representative, 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 Regulations and Rulings, Office of International Trade, will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.
Sincerely,
Joanne Roman Stump
Acting Director, Tariff Classification and Facilitation Division