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HQ 964046




July 3, 2000

CLA-2 RR:CR:GC 964046 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 8702.90.60

Mr. Willy Berchtold
Magnum Trucks LLC
904 North Garland Avenue
Fayetteville, AR 72701

RE: NY F83367 Revoked; Pinzgauer motor vehicles; passengers; models 710M and 712M.

Dear Mr. Berchtold:

This is in reference to NY F83367, which the Director of Customs National Commodity Specialist Division, New York, issued to you on February 22, 2000. This ruling concerned the 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.

We have reviewed the decision in NY F83367 and have determined that the classification of these two models is in error. This ruling revokes NY F83367.

Pursuant to section 625(c)(1), Tariff Act of 1930, as amended, (19 U.S.C. 1625(c)(1)), by section 623 of Title VI, a notice was published on May 31, 2000, in the Customs Bulletin, Volume 34, Number 22, proposing to revoke one ruling, NY F83367, dated February 22, 2000, and revoke the tariff treatment pertaining to the tariff classification of Pinzgauer motor vehicles. No comments were received in response to this notice.

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. You stated that the vehicles 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, 90 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 secondary platform surface which 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 under heading 8704, HTSUS, which describes motor vehicles for the transport of goods.

LAW AND ANALYSIS:

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:

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:

In NY F83367, the subject vehicles were held to be classifiable under heading 8703, HTSUS, based upon the mistaken understanding that the models 710M and 712M were “principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars[.]” In fact, at least 10 passengers, including the driver, may be carried in these vehicles.

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. The fact that the subject vehicles can transport at least 10 passengers has been corroborated by documentation available in the public domain on several Internet websites. Insofar as the models 710M and 712M are provided for in heading 8702, HTSUS, they are not provided for in heading 8703, HTSUS. Specifically, the language in heading 8703 stipulates that vehicles classifiable there, must be, “other than those of heading 8702 . . ..”

The vehicles may be used for the transport of passengers or goods. However, if they are used for passengers, little room is left for cargo. The floor area located in the back sections of the models 710M and 712M is narrowly configured, thus limiting the quantity of goods that might be carried. When configured for transporting goods, 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, but similar to situations in which the backs of seats in station wagons are used to transport goods. Further, in both the models 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. Therefore, we conclude that the vehicles are principally designed for the transport of persons.

This ruling applies to Pinzgauer models 710M and 712M only. Other model vehicles exist and should be classified on a case-by-case basis according to their design characteristics.

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.”

NY F83367, dated February 22, 2000, is REVOKED. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director

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