CLA-2 OT:RR:CTF:TCM H036356 HkP
CATEGORTY: Classification
Port Director, Port of Wichita
U.S. Customs and Border Protection
2227 Air Cargo Road Cargo Building Wichita, KS 67209
Attn: SIS James B. Roberts
RE: Application for Further Review of Protest No. 4503-07-100004; Classification of a Nose wheel dolly and a jury undercarriage
Dear Port Director:
This is our response to the Application for Further Review (AFR) of Protest no. 4503-07-100004, timely filed on behalf of Learjet Inc. At issue is the correct classification of a nose wheel dolly and jury undercarriage under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The products at issue are described by Protestant as follows:
The nose wheel dolly and jury undercarriage are used to transport aircraft fuselages, which consist of the complete central structure of the aircraft, to which the wing, tail surfaces, and engines are attached. The fuselages are manufactured by a supplier … and transported to the United States….
The nose wheel dolly contains two wheels and a steering mechanism, and is positioned under the nose of the fuselage to support it while in a stationary position and during transportation. The steering mechanism on the nose wheel dolly consists of two parallel plates with a single hole in each, where a pin is placed to allow attachment of a towbar to the nose wheel dolly.
The jury undercarriage contains four wheels and a simple brake system, and supports the remainder of the fuselage while in a stationary position and allows the fuselage to be transported to its desired location.
According to the information submitted, once the fuselage is loaded and secured onto the dolly and undercarriage, it is pushed into a container and secured with chains and boomers. Upon arrival, the chains and boomers are removed and the dolly and undercarriage are unloaded from the container using a pulling rod and a forklift. The fuselage remains strapped onto the dolly and undercarriage until it is sent to the assembly line, at which point the dolly and undercarriage are returned to the supplier for the next shipment.
In response to a request for more information from this office, counsel for Protestant apprised us of the following: The nose wheel dolly incorporates a coupling device but the jury undercarriage does not and the dolly and undercarriage are not connected to each other in any way. A pulling rod attaches to the dolly by means of two parallel plates with a single hole in each into which a pin is inserted. The dolly is steered by means of a steering mechanism that is adjacent to its wheels. The undercarriage does not have a steering mechanism but moves where and when the dolly moves by virtue of being secured to the same fuselage as the dolly. The wheels of the dolly and the undercarriage swivel unless locked into position. The dolly measures approximately 18x18 square inches and is 3 feet tall, and the undercarriage measures 7x7 square feet and is 3 feet tall.
On September 6, and October 4, 2005, dollies were entered under heading 8428 (8428.90.00), HTSUS, as other lifting, handling, loading or unloading machinery. On those same dates the undercarriages were entered under heading 7326 (7326.90.85), HTSUS, as other articles of iron or steel. On July 21, and August 18, 2006, U.S. Customs and Border Protection (CBP), Port of Wichita, liquidated the entries, applying the classifications under which they were entered. Importer protested the classifications on the basis that both items were classified under heading 8716 (8716.39.00), HTSUS, as other trailers or semi-trailers for the transport of goods. The Protest and Application for Further Review were filed on January 17, 2007.
ISSUES:
Whether the nose wheel dolly is classified as lifting, handling, loading, or unloading machinery of heading 8428, HTSUS, or as a trailer or semi-trailer of heading 8716, HTSUS.
Whether the jury undercarriage is classified as an article of iron or steel of heading 7326, HTSUS, or as a trailer or semi-trailer of heading 8716, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter protested 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 for entries made on or after December 18, 2004. (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)).
Further Review of Protest No. 4503-07-100004 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 because Protestant alleges that the decision against which the protest was filed is inconsistent with a CBP ruling on substantially similar merchandise. Specifically, Protestant states that in Headquarters Ruling Letter (“HQ”) 962927 (Nov. 17, 1999), CBP classified an engine stand used to transport aircraft engines under heading 8716 (8716.39), HTSUS.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation. 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 require otherwise, the remaining GRIs may then be applied.
The 2005 HTSUS provisions under consideration are as follows:
7326 Other articles of iron or steel:
7326.90 Other:
8428 Other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics):
8428.90.00 Other machinery ….
8716 Trailers and semi-trailers; other vehicles, not mechanically propelled; and parts thereof:
Other trailers and semi-trailers for the transport of goods:
8716.39.00 Other …..
8716.80 Other vehicles:
8716.80.50 Other …..
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not 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 at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). EN 73.26 provides, in relevant part:
This heading covers all iron or steel articles obtained by forging or punching, by cutting or stamping or by other processes such as folding, assembling, welding, turning, milling or perforating other than articles included in the preceding headings of this Chapter or covered by Note 1 to Section XV or included in Chapter 82 or 83 or more specifically covered elsewhere in the Nomenclature.
EN 84.28 provides, in pertinent part:
[T]his heading covers a wide range of machinery for the mechanical handling of materials, goods, etc. (lifting, conveying, loading, unloading, etc.)
EN 87.16 provides, in relevant part:
This heading covers a group of non-mechanically propelled vehicles (other than those of the preceding headings) equipped with one or more wheels and constructed for the transport of goods or persons….
The vehicles of this heading are designed to be towed by other vehicles (tractors, lorries, trucks, motorcycles, bicycles, etc.), to be pushed or pulled by hand, to be pushed by foot or to be drawn by animals.
The heading includes:
(A) Trailers and semi-trailers.
For the purposes of this heading, the terms “trailers” and “semi-trailers” means vehicles (other than side-cars) of a kind designed solely to be coupled to another vehicle by means of a special coupling device (whether or not automatic).
The most important types of trailers and semi-trailers falling in this group are those designed for use with motor vehicles. Trailers usually have two or more sets of wheels, and a coupling system mounted on the swiveling front wheels which steer the vehicles. Semi-trailers are fitted with rear wheels only, the forward end resting on the platform of the towing vehicle to which it is coupled by a special coupling device.
Protestant argues that classification under which it entered the dolly, heading 8428, HTSUS, is incorrect because, per EN 84.28, the heading provides for “machinery for the mechanical handling of materials, goods, etc.” As the dolly incorporates purely non-mechanical functions, classification under heading 8428, HTSUS, is inappropriate. In addition, Protestant argues that the dolly is classified under heading 8716 (8716.39), HTSUS, because it is a non-mechanically propelled vehicle.
Protestant also argues that the classification under which the jury undercarriage was entered, heading 7326, HTSUS, is incorrect because heading 8716, HTSUS, describes this device with more specificity. Protestant points out that heading 7326, HTSUS, is an appropriate classification only when no other heading in the Nomenclature more specifically describes the good. See EN 73.26. Protestant believes that the correct classification is under heading 8716 (8716.39.00), HTSUS.
We agree with Protestant that heading 8428, HTSUS, does not describe the dolly because the dolly does not mechanically handle the fuselage of the plane. It is merely a device used to secure the fuselage of a plane during transportation and to allow it to be towed.
Heading 8716, HTSUS, provides for two categories of goods - trailers and semi-trailers and, other vehicles not mechanically propelled. The dolly under consideration is designed solely to be coupled to another vehicle by means of a coupling device. Accordingly, we find that it meets the definition of “trailers” and “semi-trailers” provided in EN 87.16(A) and is classified under subheading 8716.39.00, HTSUS, as a trailer or semi-trailer for the transport of goods. This is consistent with CBP’s classification of an engine stand (consisting of a cradle designed to hold and protect the engine and wheel transportation base into which the cradle fit) in subheading 8716.39.00, HTSUS (by application of GRI 3(a)). See HQ 962927, Nov. 17, 1999. We note that, unlike in HQ 962927, the nose wheel dolly and jury undercarriage presently at issue are not connected to each other in any way.
With regard to the classification of the jury undercarriage, we find that it is described by the terms of heading 8716, HTSUS, because it is a vehicle that is not mechanically propelled. However, we do not agree that it is provided for in subheading 8716.39.00, HTSUS, because it does not incorporate any sort of coupling device as do trailers and semi-trailers of the (sub)heading. See EN 87.16(A). As a result, we find that the jury undercarriage is classified under subheading 8716.80.50, HTSUS, as a vehicle “other” than a trailer or semi-trailer. Consequently, it is excluded from classification under heading 7326, HTSUS, by the terms of that heading.
HOLDING:
By application of GRI 1, the nose wheel dolly is classified under heading 8716, HTSUS. It is specifically provided for in subheading 8716.39.00, HTSUS, which provides, in relevant part, for: “Trailers and semi-trailers; …: Other trailers and semi-trailers for the transport of goods: Other.” The 2005 column one, general rate of duty is Free.
By application of GRI 1, the nose wheel dolly is classified under heading 8716, HTSUS. It is specifically provided for in subheading 8716.80.50, HTSUS, which provides, in relevant part, for: “[O]ther vehicles, not mechanically propelled …: Other vehicles: Other. The 2005 column one, general rate of duty is 3.2% ad valorem.
Since the reclassification of the merchandise as indicated above would result in no net duty reduction, you are instructed to deny the protest in full. 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.
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 Bureau of Customs and Border Protection 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