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HQ 958326




DECEMBER 20, 1995

CLA-2 RR:TC:MM 958326 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8407.90.00

Ms. JoAnn Johnston
Great Lakes Customs Brokerage, Inc.
85 River Rock Drive, # 202
Buffalo, NY 14207

RE: NY 811825 Affirmed; Golf Kaddy, Motor Powered 3-Wheeled Aluminum Chassis With Handle for Steering Used to Carry Golf Bag; Motor Vehicle for the Transport of Goods, Heading 8407, HQ 085917; Works Trucks, Heading 8709

Dear Ms. Johnston:

In a letter, dated August 11, 1995, on behalf of Lectronic Kaddy, you ask that we reconsider a previous ruling to you on the tariff status of the golf kaddy.

FACTS:

In NY 811825, dated July 13, 1995, the Area Director of Customs, New York Seaport, informed you that the Lectronic Kaddy was classifiable in subheading 8704.90.00, Harmonized Tariff Schedule of the United States (HTSUS), as a motor vehicle for the transport of goods.

In support of the heading 8704 classification, the ruling cited and relied on a standard dictionary definition of the term vehicle as a device or contrivance for carrying or conveying persons or objects, esp. over land or in space, as automobiles, sleds, spacecraft, etc. You state that the actual term in heading 8407 is motor vehicle, which is defined in part to require use on streets or highways. Because of their limited range and speed you maintain these golf kaddys are not capable of use on streets or highways, and are not provided for in heading 8704. You contend that these vehicles are self-propelled works trucks of heading 8709.

The golf kaddy models in issue are the 9402, 9462 and 9463. They are 3-wheeled aluminum chassis mounted on a vertical aluminum shaft and topped with a grip-fitted horizontal handle for steering. They utilize electric battery-powered gear motors and the models 9462 and 9463 have computerized control panels - 2 -
that direct movement. These kaddys can travel up to 7,000 yards between battery charges, have a top speed of 8 mph and a turning radius approximately equal to their length.

The provisions under consideration are as follows:

8704 Motor vehicles for the transport of goods:

8704.90.00 Other...25 percent

8709 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;***:

Vehicles:

8709.11.00 Electrical...Free

ISSUE:

Whether the golf kaddys in issue are works trucks of heading 8709; whether suitability for use by road or other public ways precludes the golf kaddys from heading 8407.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

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. Customs believes the notes should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Regarding the claim as works trucks, you cite certain ENs at pp. 1433 and 1434 which state the main features which distinguish the vehicles of heading 87.09 from those of heading 8704 are their construction which generally makes them unsuitable for the transport of goods by road or other public ways; their top speed when laden is generally not more than 30 to 35 km/h; and, their turning radius is approximately equal to the length of the vehicle itself. You conclude the golf kaddys in issue are within this description.

The vehicles of heading 8709 are of the type solely or principally used in factories, warehouses, dock areas or airports for short distance transport of goods. Principal use, in this context, is the use which exceeds each other single use of the vehicles. There is no evidence the golf kaddys meet this criteria. Moreover, the ENs at p. 1434 state, in part, that works trucks are self-propelled trucks for the transport of goods which are fitted with, for example, a platform or container (sometimes designed for elevating) on which the goods are loaded (Emphasis added). The golf kaddys do not meet this description. They are not provided for in heading 8709. In view of this conclusion, the issue of whether golfing may be considered "work" for purposes of heading 8709 is deemed moot. HQ 085917, dated March 1, 1990.

Regarding your contention regarding the subheading 8407.90.00 classification, another standard dictionary defines the term motor vehicle as an automotive vehicle not operated on rails; esp. one with rubber tires for use on highways. Webster's New Collegiate Dictionary (1977) at p. 752. Thus, we do not accept the contention that motor vehicles of heading 8704 be for use on streets or highways. Even if this were a requirement, golf kaddys are certainly capable of traversing sidewalks and streets, through parking lots and other paved areas when moving from one golf hole to another.

Noting that the terms of the headings, together with any relative section or chapter notes, are paramount in determining classification, we find that the golf kaddys in issue are motorized vehicles designed to carry goods (i.e., golf clubs). They are motor vehicles of heading 8704.

HOLDING:

Under the authority of GRI 1, the golf kaddy models 9402, 9462 and 9463 are provided for in heading 8704. They are classifiable in subheading 8704.90.00, HTSUS.

NY 811825, July 13, 1995, is affirmed.

Sincerely,

John Durant, Director
Tariff Classification
Appeals Division

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