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HQ 963723




July 3, 2000

CLA-2 RR:CR:GC 963723 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 8702.90.60

Port Director of Customs
4735 Oakland Street
Denver, CO 80239

RE: Protest 3307-00-100001; Pinzgauer motor vehicles; passengers; models 710M and 712M.

Dear Port Director:

The following is our decision on Protest 3307-00-100001, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of “Pinzgauer” trucks (models 710M and 712M), manufactured by the Steyr-Daimler-Puch Fahrzeugtechnik Company. The entries were liquidated on October 29, 1999, and this protest was filed on January 27, 2000.

FACTS:

The articles in question are motor vehicles manufactured by the Steyr-Daimler-Puch Fahrzeugtechnik Company of Austria, models 710M and 712M. The motor vehicles are trucks. Model 710M (“710M”), a 4x4, carries 10 passengers, including driver. Model 712M (“712M”), a 6x6, carries 14 passengers, including driver. Both trucks have two bucket seats located in the front cab (one for the driver and one for an additional passenger). These trucks have been used by the Swiss military for the transport of persons over mountainous terrain. The ocean bill of lading from Bax Global (dated July 15, 1999), shows 9 vehicles are 710M models, manufactured in 1972, and 2 vehicles are 712M models, manufactured in 1974.

You submitted photographs of the 710M and 712M trucks. These used trucks are intended for recreational use such as camping, hunting, “off-roading,” or as a military collector’s vehicle.

Both models 710M and 712M have the following features:

2.5 liter, gasoline, 4-cylinder, air cooled, 95 hp spark-ignition engines; five forward gear transmission; seatbelts for only the front two passengers; non-removable bench seats;
vehicle-wide heating for all passengers (no air conditioning); no storage compartment under the bench seats (although gear may be stored there); and auxiliary lighting.

The back section has parallel bench seats along the length of the compartment. These bench seats have padded backrests and seats for passenger comfort. The benches on both sides may be folded down to provide a platform surface that spans the length of the compartment and most of its width.

Both the 710M and the 712M are rear wheel driven. Four wheel drive may be engaged on both units, and 6 wheel drive may be engaged on the 6x6 712 M.

ISSUE:

Whether the Pinzgauer motor vehicles, models 710M and 712M, are provided for under heading 8702, HTSUS, as motor vehicles for the transport of ten or more persons; under heading 8703, HTSUS, as motor vehicles principally designed for the transport of persons, or at heading 8704, HTSUS, which describes motor vehicles for the transport of goods.

LAW AND ANALYSIS:

Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. §1514 (c)(3)(A)), and the matter is protestable (see 19 U.S.C. 1514 (a)(2) and (5)).

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). Under GRI 1, HTSUS, goods are to be classified 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.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. Customs believes the ENs should always be consulted. See T.D. 98-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The HTSUS headings and subheadings under consideration are as follows:

8702 Motor vehicles for the transport of ten or more persons, including the driver:

8702.90 Other . . . . . . . .

Other . . . . . .

8703 Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars:

8704 Motor vehicles for the transport of goods:

The entries were liquidated under a provision in heading 8704, HTSUS, described as “motor vehicles for the transport of goods,” because the merchandise was identified as military vehicles with bench seats in the bed that fold down to form a level “secondary platform.” You determined the vehicles were classifiable in heading 8704, HTSUS.

The protestant contends that heading 8702, HTSUS describes the merchandise as “[m]otor vehicles for the transport of ten or more persons, including the driver.” Protestant argues that the 710M and 712M are provided for at subheading 8702.90.60, HTSUS.

Upon examination of the photographs of the subject merchandise we note that they carry ten or more persons including the driver. At GRI 1, models 710M and 712M are provided for at heading 8702, HTSUS. The express language of heading 8702 provides for a motor vehicle with a capacity to transport ten or more persons including the driver. Protestant provided a signed letter from a representative of Steyr-Daimler-Puch Fahrzeugtechnik Company, dated January 18, 2000, stating that the 710M was designed to carry 10 persons and the 712M was designed to carry more than 10 persons. Additional documentation, accessible in the public domain on several Internet websites, corroborated these statements.

The vehicles may be used for the transport of passengers and goods. However, if they are used for passengers, little room is left for goods. The floor area located in the back sections of the 710M and 712M is narrowly configured, thus limiting the quantity of goods that might be carried. The load platform for goods consists of using the backs of the seats. This is however, a “secondary platform” other than the actual floor of the vehicles, and is similar to situations in which the backs of seats in station wagons are used to transport goods. Further, in both the 710M and 712M, much of the space located underneath the “secondary platform” area is blocked by the presence of the backrests, thereby further curtailing cargo storage space. Insofar as the 710M and 712M are provided for in heading 8702, HTSUS, they are not provided for in heading 8703, HTSUS. While the 710M and 712M are "principally designed" for the transport of persons,” heading 8703 stipulates that such vehicles be “other than those of heading 8702 . . ..” As motor vehicles with a capacity to carry 10 or more passengers, and not designed principally for transporting goods, the 710M and the 712M are not classifiable at heading 8704, HTSUS. There are different models and versions of the Pinzgauer vehicles and they should be classified on a case-by-case basis.

HOLDING:

Under the authority of GRI 1, the Pinzgauer trucks, models 710M and 712M are provided for in heading 8702, HTSUS. They are classifiable in subheading 8702.90.60, HTSUS, which provides for “[m]otor vehicles for the transport of ten or more persons, including the driver: . . . Other . . .Other.”

The protest should be ALLOWED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant 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 accomplished prior to mailing the decision.

Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director

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