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HQ 964598




NOVEMBER 13, 2001

CLA-2 RR:CR:GC 964598 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8709.19.00

Port Director of Customs
2831 Talleyrand Ave.
Jacksonville, FL 32206

RE: Protest 1803-01-100014; Micro Truk

Dear Port Director:

This is our decision on protest 1803-01-100014, filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of the Micro Truk. The entries under protest were liquidated on October 20 and November 3, 2000, and this protest timely filed on January 17, 2001.

FACTS:

The vehicle at issue is one of the Metro Motors Micro series of vehicles, the Micro Truk, models 1010 and 1020. It has a cab for two people and a rear cargo bed with fold down sides and tailgate. The model 1010 is available as a 130-inch Standard Bed, while the model 1020 is the 145-inch Long Bed. The vehicle is powered by a 38 hp, gasoline powered spark ignition internal combustion engine, and has a 3-speed manual transmission and 4-wheel hydraulic brakes. Design features include 12-inch tires, front bumper but no rear bumper, headlights, taillights, brake lights and turn signals, and four-way flashers. The Micro Truk is equipped with two-speed intermittent wipers with washer, heater/defroster, inside/outside rearview mirrors, seat belts and dome light.

The Micro Truk is capable of a 25 mph maximum speed and is not advertised for use on the public roads. Marketing literature depicts the use of this vehicle in landscaping, facility maintenance, security, i.e., police fire protection, food service delivery, and in athletic applications such as removing injured players from the field and moving around equipment and personnel.

The vehicles were entered under a provision of heading 8709, HTSUS, for self-propelled works trucks. Based on a ruling to the importer/protestant on identical vehicles, the entries were liquidated under a provision of heading 8704, HTSUS, as motor vehicles for the transport of goods. In addition to the Micro Truk, this protest also covers another in the Metro Motors Micro series, the Micro Van, model 1030, which was also classified at liquidation in heading 8704. However, in a letter, dated November 13, 2001, counsel for the protestant abandons his claim under heading 8709 with respect to this vehicle.

Counsel makes the following arguments in support of classifying the Micro Truk in heading 8709: (1) the vehicle may be prima facie classifiable both under heading 8704 and under 8709 but, under General Rule of Interpretation (GRI) 3(a), HTSUS, heading 8709 provides the most specific description; (2) the vehicle is principally used in the environs specified in the 8709 heading text; (3) the vehicle is within the relevant EN description for vehicles of heading 8709; and, (4) the vehicle is substantially identical to other vehicles held to be classifiable in heading 8709.

The HTSUS provisions under consideration are as follows:

Motor vehicles for the transport of goods:

Other, with spark-ignition internal combustion piston engine:

G.V.W. not exceeding 5 metric tons

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; ; parts of the foregoing vehicles:

Vehicles:

8709.11.00 Electrical

8709.19.00 Other

ISSUE:

Whether the MicroTruk, as described, is a works truck of heading 8709.

LAW AND ANALYSIS:

Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (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.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

We agree with counsel that under GRI 2(a), the Micro Truk is at least prima facie described by the terms of heading 8704, HTSUS, as a motor vehicle for the transport of goods. However, we do not believe that a specificity analysis is warranted here. This is because the ENs on p. 1554 list certain design features of the works trucks of heading 8709, HTSUS, which serve to distinguish them from the vehicles of heading 8704. Among these are their construction and special design features which make 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; their turning radius is approximately equal to the length of the vehicle itself; vehicles of heading 8709 do not usually have a closed driving cab, the accommodation for the driver often being no more than a platform on which to stand. Certain types may be equipped with a protective frame or metal screen; such works trucks are normally fitted with a platform or container on which the goods are loaded.

Vehicles similar to the Micro Truk are marketed to a wide range of potential users with the vehicles’ intended purpose in mind, i.e., work. They are sold for use in golf course maintenance, to haul fertilizer, sand, etc., even personnel. These uses have expanded to include hunters and other recreational users and their gear. Among the users are universities with closed campuses and businesses with large areas to cover but limited road access, in transporting materials, security personnel, etc. Some vehicles even have specially constructed beds for stretchers for use by medical-rescue teams in rough terrain.

However, heading 8709 covers vehicles of a kind used in the environments specified in the text. This is a provision governed by “use.” See Group Italglass v. United States, 17 CIT 226 (1993). As such, it is the principal use of the class or kind of vehicles to which the Micro Truk belongs that governs classification here.

Because of the wide range of potential uses, both on and off-road, we will focus our attention on the 8709 ENs. As described, the Micro Truk is equipped with numerous design features common to small pickup trucks. Also included are comfort and convenience items like interior mirrors, shoulder and lap restraints, and safety glass. The latter suggest significant on-road uses. A letter to Metro Motors from the National Highway Traffic Safety Administration, U.S. Department of Transportation, dated January 25, 1999, examined these and other factors related to the Micro Truk, and concluded that it was not a “motor vehicle” for purpose of regulations administered by that agency. While not relevant in a tariff context under the HTSUS, this letter is an indication that design features are relevant in establishing the vehicle’s identity. The Micro Truk’s advertised speed of 25 mph is apparently an unladen speed. Additional information now available indicates that the Micro Truk’s top speed with a standard payload is 20 mph or 33 km/h. This is within the parameters stated in the ENs. The overall length of the Micro Truk, either 130 inches (Standard Bed) and 145 inches (Long Bed), is “approximately” equal to the vehicle’s minimum radius, which is listed in submitted specifications as 149 inches. Finally, whether the Micro Truk’s enclosed cargo bed with drop-down sides and tailgate qualifies as a platform or container on which the goods are loaded is uncertain. However, the vehicle does have a closed driving cab, which is not characteristic of vehicles of heading 8709.

We conclude that, on balance, the Micro Truk, as described, has a majority of the design features listed in the 8709 ENs as common to vehicles of that heading. For this reason, we conclude that this vehicle belongs to the class or kind of vehicles principally used as a works truck of heading 8709. Customs has recently completed a reexamination of its previous classification of the Micro Truk, and determined that it is classifiable as a works truck in heading 8709. See HQ 965246, dated November 6, 2001. This ruling is consistent with the classification of utility vehicles deemed substantially similar in terms of design and intended service applications to the Micro Truk. See, for example, the Mule utility vehicle (HQ 954173, dated September 22, 1993), the Gator utility vehicle (NY C83109, dated January 29, 1998), and the Carryall utility vehicle (HQ 960303, dated May 13, 1997).

HOLDING:

Under the authority of GRI 1, the Metro Motors Micro Truk is provided for in heading 8709. It is classifiable in subheading 8709.19.00, HTSUS. The Metro Motors Micro Van is provided for in heading 8704. It is classifiable in subheading 8704.31.00, HTSUS, as liquidated.

The Metro Motors Micro Truk should be reclassified under subheading 8709.19.00, HTSUS, and the protest ALLOWED as to this vehicle. The Metro Motors Micro Van remains classified under subheading 8704.31.00, HTSUS, and the protest should be DENIED as to this vehicle. 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
Commercial Rulings Division


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