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HQ 085762


January 23, 1990

CLA-2 CO:R:C:G 085762 MBR

CATEGORY:,CLASSIFICATION

TARIFF NO.:, 8703.22, 8704.31

Mr. T.J. Sommer
12745 W. Townsend Street
Post Office Box 426
Brookfield, WI 53008-0426

RE: Three-wheeled "Go-For" vehicles for the transport of goods and/or persons

Dear Mr. Sommer:

This is in reply to your letter of September 19, 1989, on behalf of Wisconsin Lift Truck Corporation, requesting classification of three quite distinct models of three-wheeled "Go-For" vehicles, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The "Go-For" vehicles have three wheels and are powered by a 35 horsepower, 1.2 liter (1200 cc), 4-cylinder gasoline engine and a 3-speed automatic transmission. Standard features include; shaft drive train, heavy duty multiple leaf springs with hydraulic shock absorbers, dual master cylinder front and rear brakes with internal expanding shoes, a parking brake, a single headlight, turn signals, conventional worm and sector steering (power steering on future models), and an operational reverse gear. Optional equipment includes; propane conversion, all weather cab, "police body," right hand steering, comfort ride seats, 12,500 BTU liquid core heater, sliding doors, defroster fan, revolving beacon light, cab mounted stop lights. All three models have a sealed governor limiting the vehicles' speed to between 25-39 mph, depending on the model.

Three models are manufactured: 1) Police /Security Vehicle, 2) Dumping Refuse Hopper, and 3) Standard Flat Bed. The "Police/ Security" model has a storage area behind the cab (with dimensions of: 41" width, 56" length, 12"-23" depth) and is only capable of transporting up to 600 lbs. due to the light-weight springs of this model. The "Dumping Refuse Hopper" has a refuse bin with an optional electric or engine driven hydraulic power pack for dumping. The "Standard Flat Bed" has a flat bed with a capacity of 2,000 lbs. and an optional hydraulic tilt bed. The "Go-For" will be manufactured in Canada and shipped directly to the consumer in its finished state.

ISSUE:

What are the classifications of the three models of "Go-For" three-wheeled vehicles under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?

LAW AND ANALYSIS:

You argue that since the United States Department of Transportation terms these vehicles "motorcycles," therefore U.S. Customs should classify these vehicles as "motorcycles" under the Harmonized Tariff Schedule of the United States Annotated. However, the nomenclature of the U.S. Department of Transportation has no bearing on the HTSUSA or its interpretation.

The General Rules of Interpretation (GRI's) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part:

...classification shall be determined according to the terms of the headings and any relative section or chapter notes...

Heading 8711, HTSUSA, provides for: "Motorcycles (including mopeds) and cycles fitted with an auxiliary motor, with or without sidecars." The Harmonized Description and Coding System Explanatory Notes to heading 8711, HTSUSA, page 1436, state:

This heading covers a group of two-wheeled motorized vehicles which are essentially designed for carrying persons. In addition to motorcycles of the conventional type, the heading includes motor- scooters...mopeds...and cycles fitted with an auxiliary motor.... Three-wheeled vehicles (e.g., the "delivery tricycle" type) are also classified here provided they do not have the character of motor vehicles of heading 87.03 (see the Explanatory Note to heading 87.03).

The Harmonized Description and Coding System Explanatory Notes to heading 87.03, HTSUSA, page 1426, state:

The heading also covers lightweight three-wheeled vehicles of simpler construction, such as: those fitted with motorcycle engine and wheels, etc. which, by virtue of their mechanical structure, possess the characteristics of conventional motor cars, that is motor car type steering system or both reverse gear and differential.

Clearly, the mechanical structure of all three "Go-For" models possesses certain important characteristics of conventional motor cars, i.e., they have motor car type steering (power steering on future models), a reverse gear, shaft drive, a parking brake, etc. Therefore, the "Go-For" is not properly classifiable under heading 87.11, HTSUSA, which provides for motorcycles.

Heading 8709, HTSUSA, provides for; "Works trucks, self- propelled, not fitted with lifting or handling equipment, of the type used in factories, warehouses, dock areas or airports for short distance transport of goods;" (Emphasis added). The Harmonized Commodity Description and Coding System Explanatory Notes to heading 8709, HTSUSA, page 1433, state:

This heading covers a group of self-propelled vehicles of the types used in factories, warehouses, dock areas or airports for the short distance transport of various loads (goods or containers) or, on railway station platforms, to haul small trailers. Such vehicles are of many types and sizes. They may be driven either by an electric motor with current supplied by accumulators or by an internal combustion piston engine or other engine. The main features common to the vehicles of this heading which generally distinguish them from the vehicles of heading 87.01, 87.03 or 87.04 may be summarized as follows: (1) Their construction and, as a rule, their special design features, make them unsuitable for the transport of passengers or for the transport of goods by road or other public ways. (2) Their top speed when laden is generally not more than 30 to 35 km/h. (3) Their turning radius is approximately equal to the length of the vehicle itself. Vehicles of this heading do not usually have a closed driving cab, the accommodation for the driver often being no more than a platform on which he stands to steer the vehicle."

The Explanatory Notes, although not dispositive, should be looked to for the proper interpretation of the HTSUSA. See 54 Fed. Reg. 35128 (August 23, 1989).

This Explanatory Note provides for a variety of vehicles. However, the definition of "works" is "a place where industrial labor is carried on: PLANT, FACTORY ." The first general criterion in the Explanatory Note to 87.09 states that "their construction * * * makes[s] them unsuitable for the transport of passengers or for the transport of goods by road or other public ways." The descriptive literature of the Go-For states that all three models can be licensed for travel on the road. Furthermore, the Police/Security model is intended for travel on the public ways for parking enforcement, not "for the short distance transport of various loads." Additionally, the "Go-For" vehicles have a cab with windshield wipers, to protect the driver from the elements rather than just a platform to stand upon. Therefore, although the Go-For vehicles meet some of the criterion for "works trucks," they are not appropriately classifiable in heading 8709.

Heading 8704 provides for motor vehicles for the transport of goods. Subheading 8704.10 provides for dumpers designed for off- highway use. However, the "Dumping Refuse Hopper" is not a dumper designed for off-highway use. "Off-highway use" dumpers are generally fitted with off-the-road wheels and can work over soft ground, whereas, this model does not have the capability to work over soft ground since it has small tires and a low clearance. See Explanatory Note, page 1428, for additional distinguishing features of dumpers not present in the "Go-For."

The "Dumping Refuse Hopper" and the "Standard Flatbed," therefore, are clearly classifiable in subheading 8704.31, which is the provision for motor vehicles for the transport of goods, spark-ignition internal combustion engine, G.V.W. not exceeding 5 metric tons.

The "Police/Security" model, however, is designed principally for the transport of persons, i.e. police/parking enforcement officials. The box behind the cab is of marginal utility due to its size, shape and the relatively low weight capacity of the springs on this model. Therefore, the "Police/Security" model is properly classifiable under subheading 8703.22.00, HTSUSA, which provides for motor cars and other motor vehicles designed for the transport of persons.

HOLDING:

The "Dumping Refuse Hopper" and the "Standard Flat Bed" models are classifiable under 8704.31.00, HTSUSA, which is the provision for motor vehicles for the transport of goods, other, with spark- ignition internal combustion piston engine, G.V.W. not exceeding 5 metric tons. Although imported from Canada, three-wheeled vehicles are excluded from a free rate of duty under the Automotive Products Trade Act pursuant to General Note 3(c)(iii)(A)(3), HTSUSA. However, upon compliance with the applicable regulations of the United States-Canada Free Trade Agreement, these vehicles would be entitled to a free rate of duty.

The "Police/Security" model of "Go-For" is classifiable under 8703.22.00, HTSUSA, which is the provision for motor cars and other motor vehicles principally designed for the transport of persons, of a cylinder capacity exceeding 1,000 cc but not exceeding 1,500 cc. Although imported from Canada, three-wheeled vehicles are excluded from a free rate of duty under the Automotive Products Trade Act pursuant to General Note 3(c)(iii)(A)(3), HTSUSA. However, upon compliance with the applicable regulations of the United States-Canada Free Trade Agreement, these vehicles would be entitled to a free rate of duty.

EFFECT ON OTHER RULINGS:

In Customs ruling letter dated July 14, 1989, HQ 082797, we held that the Mighty Mits dumper was classifiable under 8704.10, HTSUSA, the provision for dumpers designed for off-highway use. The Harmonized Commodity Description and Coding System Explanatory Notes to subheading 8704.10, HTSUSA, page 1428, state: "These dumpers can generally be distinguished from other vehicles for the transport of goods (in particular, tipping lorries) by the following characteristics: the dumper body is made of very strong steel sheets; its front part is extended over the driver's cab to protect the cab; the whole or part of the floor slopes towards the rear; lack of axle suspension; high braking capacity; special earth moving tires." The Mighty Mits does not meet any of these criterion. Therefore, it is now Customs position that the Mighty Mits dumper is properly classifiable under 8704.31, HTSUSA, which provides for motor vehicles for the transport of goods. This ruling is modified under authority of section 177.9(d), Customs Regulations.

Sincerely,

John Durant, Director

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