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HQ 955231



January 7, 1994

CLA-2 CO:R:C:M 955231 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8709.19.00

District Director
U.S. Customs Service
423 Canal Street, Room: 245
New Orleans, LA 70130

RE: Protest No. 2002-93-101553; Hydraulic Transporter; Works Trucks; Special Purpose Vehicle; Explanatory Notes 87.05(9), 87.04(3), and 87.09; HQ's 087028 and 952400; 8705.90.00; 8704.23.00; 9903.87.00

Dear District Director:

The following is our decision regarding the request for further review of Protest No. 2002-93-101553 concerning your action in classifying and assessing duty on a hydraulic transporter under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The imported vehicle is a Scheuerle Hydraulic Transporter (Chassis No. 4153). It is a swivel-wheel, multi-wheeled heavy duty industrial truck which consists of a cab-under-platform design. The transporter, constructed to transport loads of great weight, features infinitely variable steering at transversal drive and an electronic control for raising or lowering platform level adjustment. No dimensions or specifications are provided, however, review of the photographs and brochure for this vehicle indicates that it is constructed to transport extremely heavy loads. The transporter is used in a barge transfer facility to receive a barge from a specialized crane at the water site, and then move the barge across the yard to the work shop for repairs. The transporter never leaves the barge yard, and it is not designed for highway use.

The merchandise was entered under subheading 8705.90.00, HTSUS, as an other special purpose motor vehicle. The entry was liquidated on September 3, 1993, under subheading 8704.23.00, HTSUS, as a motor vehicle for the transport of goods, G.V.W. exceeding 20 metric tons. Goods classifiable under this provision are dutiable at 25 percent ad valorem by virtue of subheading 9903.87.00, HTSUS, in lieu of the duty rate for subheading 8704.23.00, HTSUS. The protest was timely filed on October 01, 1993.

The subheadings under consideration are as follows:

8705.90.00: [s]pecial purpose motor vehicles, other than those principally designed for the transport of persons or goods (for example, wreckers, mobile cranes, fire fighting vehicles, concrete mixers, road sweepers, spraying vehicles, mobile workshops, mobile radiological units.

The general, column one rate of duty for goods classifiable under this provision is 3.7 percent ad valorem.

8704.23.00: [m]otor vehicles for the transport of goods: [o]ther, with compression-ignition internal combustion piston engine (diesel or semi- diesel): [g].V.W. exceeding 20 metric tons.

The general, column one rate of duty for goods classifiable under this provision is 8.5 percent ad valorem.

8709.19.00: [w]orks 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 . . . : [v]ehicles: [o]ther.

Goods classifiable under this provision receive duty-free treatment.

ISSUE:

Whether the hydraulic transporter is classifiable under subheading 8705.90.00, HTSUS, as an other special purpose motor vehicle, under subheading 8704.23.00, HTSUS, as a motor vehicle for the transport of goods, G.V.W. exceeding 20 metric tons, or under subheading 8709.19.00, HTSUS, as an other works truck.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). Explanatory Note 87.05(9) (p. 1429) states that:

[t]his 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.

[t]he heading includes:

(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 HQ 087028, dated August 13, 1990, a vacuum tank truck was held to be classifiable under heading 8704, HTSUS. In precluding the truck from classification under heading 8705, HTSUS, we stated that:

[o]ur review of the [Explanatory Notes] leads to the conclusion that vehicles of heading 8705 must possess equipment designed to perform a specialized service or services at the job site, with any transport function clearly subsidiary.

The principal function of the subject hydraulic transporter is as a transporter of barges for repair. It is our understanding that the transporter has no other intended purpose. Therefore, because the transporter is equipped with elevating devices and is essentially for the transport of goods, in accordance with Explanatory Note 87.05(9) and HQ 087028, it is not classifiable under subheading 8705.90.00, HTSUS.

Explanatory Note 87.04 (3) (p. 1428) states that:

[t]his heading also covers:

(3) Self-loading vehicles equipped with winches, elevating devices, etc., but designed essentially for transport purposes.

However, in part, Explanatory Note 87.09 states that:

[t]his 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. . .

The main features common to the vehicles of this heading which generally distinguish them from the vehicles of heading . . . 87.04 may be summarised 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. Certain types may be equipped with a protective frame, metal screen, etc., over the driver's seat. . .

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.

In HQ 952400, dated February 9, 1993, we dealt with classification of industrial trucks under the HTSUS. In classifying the trucks under heading 8709 as works trucks, we stated that:

[t]he very heavy weights of the loads the trucks are designed to carry, considered in addition to the weights of the vehicles themselves, could not or would not normally be carried by road or other public ways. The trucks must be used on surfaces and in areas which are amenable to the operation of large trucks with very heavy loads. The maximum speeds when laden and the turning radius' of the trucks are well within the ranges commonly associated with trucks designed for the short distance transport of goods within factories and other industrial sites.

[t]he trucks do not have all the features commonly associated with heading 8709 works trucks (e.g., open driving cab). However, considering all the features of the trucks, including those described above, it is Customs position that the trucks are properly described as works trucks . . .

As with the industrial trucks in HQ 952400, it is our position that the subject hydraulic transporter is classifiable under subheading 8709.19.00, HTSUS, as a works trucks. It does not have an open cab, but it does possess the features common to the trucks in heading 8709, HTSUS. The transporter is not used for highway use, it moves at a slow pace, it possesses an elevating platform, and, as it is designed for transporting barges, it is used to carry very heavy loads.

Therefore, because the hydraulic transporter is specifically classifiable under heading 8709, HTSUS, it is our position that it is distinguishable from the vehicles of heading 8704, HTSUS.

HOLDING:

The hydraulic transporter is classifiable under subheading 8709.19.00, HTSUS, as an other works truck.

Because reclassification of the merchandise as indicated above will result in a lower rate of duty than claimed, you are instructed to allow the protest in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of 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 the public via the Diskette Subscription Service, Lexis, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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