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HQ 967597




December 8, 2005

CLA-02 RR:CTF:TCM 967597 RSD

CATEGORY: CLASSIFICATION

TARIFF Nos. 8716.80.1000 and 8716.80.5090

Port Director
U.S. Customs and Border Protection
Port of San Francisco, California
555 Battery Street
San Francisco, CA 94111

RE: Protest Number 2809-04-100658; Tariff Classification of Two Horse Drawn Vehicles, a “Hitch Wagon” and a “Vis a Vis Carriage”

Dear Port Director:

This is our decision on Protest Number 2809-04-100658 filed by Barbara L. Dotta on December 28, 2004, against your classification of two horse drawn vehicles, a “hitch wagon” and a “Vis a Vis” carriage, under the Harmonized Tariff Schedule of the United States. (HTSUS). The entry under protest was liquidated on November 14, 2004, and this protest was timely filed on December 28, 2004.

FACTS:

The goods under consideration in this protest are two horse drawn vehicles. The first item is a hitch wagon, which is described on the commercial invoice as a “hitch wagon, pole a swingletree.” It weighs 1,000 Kg. The protestant indicates that the hitch wagon is used for farm work such as hauling materials such as wood, trees, lumber, fencing supplies, feed, hay, and grain. The wheels of the wagon are made of metal for use on rugged terrain and for avoiding wheel shrinkage in dry climates. The wagon does not have steps. Its box is over four feet above ground, which makes it impractical for use as a passenger vehicle. The driver’s seat is also very high so that the driver can see over the draft horses. The second vehicle is described on the commercial invoice as a Vis a Vis carriage. Protestant indicates that the Vis a Vis carriage is for personal use to transport passengers. It is specifically designed with a handicap entry. In addition, the Vis a Vis carriage features passenger seats, an entry/exit step, a door, a covered roof, and a highly stylized body design. The step is very low to the ground and that there are metal railings on both sides of the door so that disabled people can aid in pulling themselves forward. The photographs contained in the protest file, show that the Vis a Vis carriage has a covered roof to protect passengers. The photographs also show an ornamental and a highly stylized designed vehicle. At the time they were imported, both of the horse drawn vehicles were entered under subheading 8716.80.10, HTSUS, as “trailers and semi-trailers; other vehicles, not mechanically propelled; and parts thereof: other vehicles farm wagons and carts.” However, the port decided that this classification was not correct and liquidated both vehicles in subheading 8716.80.50, HTSUS, which provides for “trailers and semi-trailers; other vehicles, not mechanically propelled; and parts thereof: Other vehicles: Other.”

ISSUE:

Whether the two horse drawn vehicles are classified in subheading 8716.80.50, HTSUS, as other vehicles, not mechanically propelled or in subheading 8716.80.10, HTSUS, as trailers and semi-trailers; other vehicles, not mechanically propelled; farm wagons and carts.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. GRI 6 thus incorporates GRI 1 through 5 in classifying goods at the subheading level. Since GRI 6 uses the phrase "for legal purposes", the preceding GRI do not have application beyond the eight digit level, since the ninth and tenth digit are used only for statistical purposes.

The HTSUS provisions under consideration are as follows:

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

8716.80 Other vehicles:

8716.80.10 Farms wagons and carts

8716.80.50 Other.

In HQ 955262, dated December 7, 1993, CBP explained that no distinctions between "trailers and semi-trailers" and "farm wagons and carts" has been drawn for classification purposes under the HTSUS. However, this issue as to whether an article is a farm wagon or a trailer has been considered numerous times under the Tariff Schedules of the United States (TSUS). In Richard L. Jones v. United States, 58 Cust. Ct. 165, C.D. 2920 (1967), the court held that certain cotton wagons, used to transport cotton from a field to a gin were classified as farm wagons and carts in item 666.00, TSUS, which provided for agricultural implements, not specifically provided for. Although the court's conclusion appears to classify the cotton wagons under two distinct provisions of item 666.00, TSUS (i.e., "farm wagons" and "agricultural implements not specially provided for"), we note that the court went to great lengths to distinguish between a wagon and a trailer. A trailer, according to the definitions cited by the court, appears to be designed for highway travel or for use in an industrial plant. A farm wagon or cart is not so designed. Further, the court noted that the terms "wagon' and "cart" are not synonymous with "trailer."

In addition, in HQ 955262, we cited HQ 070245, dated February 10, 1993, in which we pointed out that [w]agons which are designed for and chiefly used in agricultural pursuits are characterized by their off-highway utilitarian nature. Wagons usually do not have lights, brakes, or shock-absorbing suspensions. They are capable of bearing heavy loads over rough terrain, and they are incapable of safe speed over 20 miles per hour. Some of these wagons have self-unloading features designed to enable a person to pick up agricultural products from the field for transport to market or to a storage site.

In this instance the first horse drawn vehicle, the hitch wagon, is generally intended for use in farm work and for hauling various types of materials. The photograph of the vehicle shows that it is rather plain. It does not look like it is intended for transporting passengers. While the hitch wagon has a place for a driver, it does not have any seats where passengers can sit, nor does it have any protective covering. Because it is designed for transporting materials rather than people, we find that the hitch wagon is classified in subheading 8716.80.10, HTSUS, as a farm wagon and cart.

With respect to the Vis a Vis carriage, various web sites such as http://www.paragoncarriage.com/ indicate that these vehicles are used to transport passengers in elegant style for special occasions such as weddings, parades, anniversaries, engagements, corporate promotions and parties of every kind. In this instance, we conclude that the Vis a Vis carriage is primarily intended for transporting passengers because it has passenger seats, a covered roof, a door, an entry/exit step, and an elaborately styled body. Since the Vis a Vis carriages are primarily intended for transporting people, we believe that they cannot be classified as farm wagons in subheading 8716.80.10, HTSUS. Instead we find that the Vis a Vis carriage is classified in subheading 8716.80.50, HTSUS, as “Other vehicles not mechanically propelled: Other vehicles: other.”

HOLDING:

The hitch wagon is classified in subheading 8716.80.1000, HTSUS, which provides for: “Trailers and semi-trailers; other vehicles not mechanically propelled: and parts thereof: Other vehicles: Farms wagons and carts” at the general, column one rate which is duty free. The Vis a Vis carriages are classified in subheading 8716.80.5090, which provides for: “Trailers and semi-trailers; other vehicles, not mechanically propelled; and parts thereof: Other vehicles: Other: Other: Other” at the general, column one rate of duty of 3.2 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division


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