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HQ 958767




MARCH 15, 1996

CLA-2 RR:TC:MM 958767 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8704.23.00

Port Director of Customs
3236 16th. St., S.W.
Seattle, WA 98134

RE: PRD 3001-95-100455; Lift-Truck, All-Terrain Truck, Motor Vehicle for the Transport of Goods,
Heading 8704; Special Purpose Motor Vehicle, Heading 8705

Dear Port Director:

This is our decision on Protest 3001-95-100455 filed against your classification of the Tatra 815 vehicle, a product of the Czech Republic. The entry was liquidated on May 5, 1995, and this protest timely filed on June 29, 1995.

FACTS:

The vehicle under protest is a 1991 Tatra truck, model 815 VVN 26 265. Pictures and other descriptions show an eight-wheel, four-axle vehicle consisting of an enclosed cab, chassis, and rear cargo deck with sideboards. The Tatra has all-wheel drive and fully independent suspension, and is equipped with a winch. It has a curb weight of 15,200 kg. a payload capacity of 12,000 kg. and a maximum forward speed of 80 km/hr. The rear cargo platform measures 2,410 mm x 6,250 mm. Submitted literature describes the Tatra 815 as a platform lorry "...intended for transport of loads and persons...and for hauling trailers..." and labels it the "Truck of the Future."

The vehicle was entered as a special purpose vehicle of heading 8705, Harmonized Tariff Schedule of the United States (HTSUS). The importer's representative maintains the winch enables the vehicle to retrieve distressed machinery and equipment. Thus, it is akin to wreckers provided for in heading 8705. Your office determined the Tatra 815 is a motor vehicle for the transport of goods and liquidated the entry under the appropriate provision in heading 8704, HTSUS. There is a picture of the Tatra 815 minus the cargo body (i.e., a cab chassis) but this is believed to be for promotional purposes only. Other documentation in the file indicates the vehicle under protest is imported with cargo body intact. - 2 -

The provisions under consideration are as follows:

8704 Motor vehicle for the transport of goods:

Other, with compression-ignition internal
combustion piston (diesel or semi-diesel):

8704.23.00
G.V.W exceeding 20 metric tons

...25 percent

8705 Special purpose motor vehicles, other than those principally designed for the transport of persons or goods...:

8705.90.00
Other...2.2 percent ad valorem

ISSUE:

Whether the Tetra 815 vehicle is principally designed for the transport of persons or goods.

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

Relevant ENs at p. 1429 state that heading 87.05 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 heading 87.05 is not the transport of persons or goods. Among the vehicles included in heading 87.05 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.

(7) Crane lorries, not for the transport of goods, consisting of a motor vehicle chassis on which a cab and a rotating crane are permanently mounted.
However, lorries with self-loading devices are excluded
(heading 87.04).

(9) Lorries fitted with stacking mechanisms (i.e., with a platform which moves on a vertical support and is generally powered by the vehicle engine). But the heading excludes self-loading motor-vehicles equipped with winches, elevating devices, etc., but which are constructed essentially for the transport of goods
(heading 87.04).

In each of these examples, the winch, crane or elevating device, etc., performs the primary function for which the vehicle was designed, with any cargo or personnel-carrying capability being subsidiary. The design characteristics and other available information indicate the Tatra 815 is a motor vehicle constructed essentially to carry goods, with any personnel-carrying, or lifting, material-handling or other non-transport functions being subsidiary.

HOLDING:

Under the authority of GRI 1, the Tatra 815 VVN 26 265 is provided for in heading 8704. It is classifiable in subheading 8704.23.00, HTSUS.

The protest should be DENIED. In accordance with 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 broker, 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 - 4 -
accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings 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,

John Durant, Director
Tariff Classification
Appeals Division

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