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HQ 951442


May 1, 1992

CLA-2 CO:R:C:M 951442 AJS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8705.90.00

Mr. Ben L. Irvin
Irvin & Ellis
Attorneys at Law
1709 N Street, N.W.
Washington, D.C. 20036

RE: Asquith Shire; Special purpose motor vehicle; Heading 8704; ENs 87.05; ENs 87.05 (22); H. Conf. Rep. No. 576; The Carrington Co. v. U.S.

Dear Mr. Irvin:

Your letter of March 9, 1992, requesting the tariff classification of the Asquith "Shire" motor vehicle under the Harmonized Tariff Schedule of the United States (HTSUS), has been referred to this office for reply.

FACTS:

The Shire is a one ton 1920s replica motor vehicle built on a Ford Transit chassis. It possesses an extra roof rack that carries message boards, and detachable side panels that also serves as message boards or serving hatches. It is available with an extended roof which gives the vehicle an interior height of six feet. The interior is equipped with catering equipment such as cabinets, shelving, ice chest, and faucet. The vehicle appears to be suitable for promotional activities such as serving free samples of refreshments or as a vendor's wagon for selling drinks at outdoor activities such as fairs, picnics and carnivals.

ISSUE:

Whether the Shire is classifiable within heading 8705, HTSUS, which provides for "[s]pecial purpose motor vehicles, other than those principally designed for the transport of
persons or goods (for example . . . mobile workshops, mobile radiological units)."; or classifiable within heading 8704, HTSUS, which provides for motor vehicles for the transport of goods.

LAW AND ANALYSIS:

Heading 8705, HTSUS, provides for special purpose motor vehicles. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) to heading 87.05 state that 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 goods. ENs 87.05, p. 1429 (1992). The Shire satisfies this description. It is a special purpose vehicle equipped with catering equipment which is used to advertise and dispense refreshments. From its design, it is apparent that the vehicle will be used not only to transport refreshments from one place to another but, more importantly, to dispense or sell refreshments at the place of arrival.

The ENs to 87.05 further state that this heading includes mobile banks, travelling libraries, and mobile showrooms for the display of goods. ENs 87.05 (22). The Shire also satisfies this description. It is a mobile concession stand for the advertisement and distribution of refreshments. While the ENs are not dispositive, they provide a commentary on the scope of each heading and offer guidance for interpretation of the HTSUS. H. Conf. Rep. No. 576, 100th Cong., 2d Sess., p. 549, reprinted in 1988 U.S. CODE CONG. & ADMIN. NEWS p. 1582. Accordingly, we consider the above ENs instructive for determining that the Shire satisfies the terms of heading 8705, HTSUS. More specifically, the Shire is described within subheading 8705.90.00, HTSUS, which provides for "other" special purpose motor vehicles.

In The Carrington Co., United Geophysical Corp. v. United States, C.D. 4415 (1973), aff'd, 496 F.2d 902 (1974), the Customs Court discussed the predecessor provision of heading 8705, HTSUS, (i.e., item 692.16) under the Tariff Schedules of the United States (TSUS). The Court stated that "special purpose vehicles might consist of . . . chassis plus various devices fitted thereon, equipping them for special purposes or functions." C.D. 4415 at 113. The Court further stated that "[i]t is sufficient [for classification as a special purpose vehicle] if the unit be specially constructed
and equipped for special services or functions." The Shire satisfies these descriptions. It consists of a chassis upon which a 1920s replica vehicle is built, plus an extra roof rack that carries message boards and detachable side panels that also serve as message boards or serving hatches. It is additionally specially equipped with catering equipment. These additional features are for the special service of dispensing refreshments and providing unique advertising. Therefore, the Shire also satisfies the Carrington description of a special purpose vehicle.

Congress has indicated that earlier tariff decisions must not de disregarded in applying the HTSUS. The conference report to the 1988 Omnibus Trade Bill states that "on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS[US], particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS[US]." H. Conf. Rep. No. 576, 550. While the structure of the two provisions has changed somewhat, both provisions essentially cover types of special purpose motor vehicles. In addition, no dissimilar interpretation is required by the text of heading 8705, HTSUS. As discussed previously, the text of the HTSUS supports a similar interpretation. Accordingly, we find the Carrington decision instructive for interpreting the meaning of "special purpose vehicles" under the HTSUS.

Heading 8704, HTSUS, provides for motor vehicles for the transport of goods. It is argued that the Shire is properly classifiable within this heading. However, it does not satisfy this description. As discussed previously, the Shire is a special purpose vehicle used to dispense and advertise refreshments and not merely for the transport of goods. Thus, the Shire is not properly classifiable within heading 8704, HTSUS.

HOLDING:

The Asquith Shire is classifiable within subheading 8705.90.00, HTSUS, which provides for "other" special purpose motor vehicles, currently dutiable at the General Column 1 rate of 3.7 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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