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HQ 965405




JULY 17, 2002

CLA-2 RR:CR:GC 965405 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8708.99.80

Port Director of Customs
40 South Gay Street
Baltimore, MD 21202

RE: Protest 1303-01-100145; Crane-Equipped Bogie Wagons for Log Forwarders

Dear Port Director:

This is our decision on Protest 1303-01-100145, filed on behalf of Ponsse USA, Inc., against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of wheeled bogie wagons or aft sections for incorporation into log forwarders. The entry under protest was liquidated on April 6, 2001, and this protest timely filed on July 5, 2001.

FACTS:

The merchandise at issue is a bogie wagon or aft section for motor vehicles called log forwarders. It consists of a bed or bunk on parallel sets of oversized wheels with high ground clearance, configured to hold cut-to-length timber. At the front is mounted a grapple crane powered by a hydraulic pump in the tractor. After importation, this aft section is coupled by means of a pivot joint to a 2-wheeled tractor forward section to form the Bison F15 Log Forwarder. When completed, the log forwarder is capable of operating in all-wheel drive, by means of a front tractor axle with planetary gear and differential lock, and a rear bogie wagon axle with the motive force provided by a drive shaft which extends the length of the wagon and connects to a gear box in the tractor. The rear wheel drive feature can be disengaged by a switch in the cab of the tractor, in which case the log forwarder operates as a front wheel vehicle. Traditionally, utilizing the grapple crane for loading and unloading purposes, log forwarders such as the F15 transport cut and de-limbed timber from the forest floor to a road or staging area where a larger vehicle transports it to the mill.

The bogie wagon was entered under a provision of heading 8716, HTSUS, for self-loading or self-unloading trailers and semi-trailers for agricultural purposes. Your office determined the good was not a “trailer” for tariff purposes and, pursuant to an administrative ruling on substantially similar merchandise, liquidated the entry under a provision of heading 8708, HTSUS, as other parts and accessories for the motor vehicles of headings 8701 to 8705.

In a Memorandum of Facts and Law, including photographs and specifications, which accompanied the Protest, Customs Form 19, counsel for the protestant makes the following arguments in support of the heading 8716, HTSUS, classification: (1) there being no legal definition in the HTSUS for “trailer,” the bogie wagon is within the common and commercial meaning of that term, i.e., it is a vehicle, it attaches to the rear of a tractor which “hauls” it; (2) noting the rules of grammar in statutory construction, because “Trailers and semi-trailers” in the 8716 heading text is separated by a semicolon from “other vehicles, not mechanically propelled,” the presence of mechanical propulsion does not per se disqualify the bogie wagon at issue from classification in heading 8716; (3) the 8716 ENs which state that heading 8716 applies to non-mechanically propelled vehicles should be disregarded, because it conflicts with the grammatical rule of construction in (2); (4) in HQ 961261, dated February 3, 1998, tractive bases for logging machines were found to be classifiable as tractors of heading 8701, HTSUS. As tractors are defined in the HTSUS legal text as vehicles designed to haul other vehicles then, by definition, the vehicle it hauls must be an article of heading 8716; and finally, (5) a trailer substantially similar to the bogie wagon at issue was recently classified in heading 8716 pursuant to an Order of Stipulated Judgement on Agreed Facts.

The HTSUS provisions under consideration are as follows:

Parts and accessories for the motor vehicles of headings 8701 through 8705:

8708.99 Other:

8708.99.80 Other

8716 Trailers and semi-trailers; other vehicles, not mechanically propelled; and parts thereof:

8716.20.00 Self-loading or self-unloading trailers and semi-trailers for agricultural purposes

ISSUE:

Whether the bogie wagon or aft section of a log forwarder, as described, is a good of heading 8716.

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).

Addressing counsel’s arguments (1) and (2), we agree that the terms “trailer” and “semi-trailer” in the 8716 heading text are to be construed in accordance with their common and commercial meaning which are presumed to be the same. We further agree with counsel that standard dictionaries are generally in accord in defining “trailer” as “a vehicle or one in a succession of vehicles hauled usu. by some other vehicle.” (Emphasis added). In addition, the Dictionary of Automotive Terms, www.motorera. com/dictionary/car-dict.htm, defines “trailer” as [1] Platform or container on wheels pulled by a truck or trailer.” (Emphasis added). See also HQ 956604, dated September 26, 1994, which states, in relevant part, that “trailers and semi-trailers of heading 8716 are non-mechanically propelled vehiclesdesigned to be coupled to and towed by other vehicles such as tractors or trucks.” (Emphasis added). The fact that in all-wheel drive mode, the rear axle drive shaft provides mechanical propulsion to the bogie wagon, however minimally, warrants the conclusion that the bogie wagon is not hauled, pulled, towed or drawn along by the tractor; rather it is propelled by the tractor. The bogie wagon is not within the common meaning of the terms “trailer” or “semi-trailer” for purposes of heading 8716. Contrary to the assertion in counsel’s third argument, that the quoted terms connote vehicles that are not mechanically propelled is substantiated by the relevant 8716 ENs. Counsel’s fourth argument that HQ 961261 supports classification of the bogie wagon as a trailer, in heading 8716, is misplaced, as that ruling was revoked by HQ 965029, dated September 5, 2001. That ruling classified tractive bases for logging machines in subheading 8708.99.80, HTSUS. Finally, Stipulated Judgements are binding on the Government only as to the merchandise and entries before the Court, and do not serve as precedent with respect to subsequent entries.

Goods of heading 8708 must be identifiable as being suitable for use solely or principally with the motor vehicles of headings 8701 through 8704 and they must not be excluded by the legal notes to Section XVII. Also, the good must not be more specifically described by another provision of the HTSUS. The Bison F15 Log Forwarder is a motor vehicle for the transport of goods, and is provided for in heading 8704, HTSUS. As the available evidence indicates the bogie wagon at issue is a part principally used with log forwarders, the appropriate classification is in subheading 8708.99.80, HTSUS. See NY F80926, dated December 27, 1999.

HOLDING:

Under the authority of GRI 1, the bogie wagons or aft sections for the Bison F15 Log Forwarder are provided for in heading 8708. They are classifiable in subheading 8708.99.80, 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 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,

Myles B. Harmon, Acting Director
Commercial Rulings Division


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