HQ H018497

May 30, 2008

**CLA-2 OT:RR:CTF:TCM** H018497 GC

**CATEGORY:** Classification

**TARIFF NO.:** 8708.99.6790

U.S. Customs and Border Protection

Norfolk Service Port

101 East Main Street

Norfolk, Virginia 23510

Attn: Port Director

**RE:** Tariff classification of a fixed joint drive shaft for use in
the Oshkosh MTVR Cargo Vehicle; Protest Number 1401-07-100034

Dear Port Director:

The following is our decision regarding Protest and Application for
Further Review (AFR) number 1401-07-100034, dated October 2, 2007. The
protest, filed on behalf of GKN Driveline North America, Inc. (GKN),
pertains to Customs and Border Protection's (CBP) classification and
subsequent liquidation of an entry of an inboard fixed joint drive shaft
for use in different models of the Oshkosh Medium Tactical Vehicle
Replacement (MTVR) Standard Cargo Truck and the MTVR Extended Cargo
Truck, used by the military. Specifically, this protest covers the entry
which occurred on March 8, 2006 and was liquidated on January 19, 2007.

**FACTS:**

The item at issue is an inboard fixed joint drive shaft (drive shaft)
for a motor vehicle. The metal part attaches a vehicle's differential
gearbox to a drive-axle or drivetrain, thus becoming part of the
vehicle's power train (the parts which, collectively, transmit power
from the vehicle's engine to its wheels). The drive shaft will be used
in several different models of MTVR vehicles manufactured by Oshkosh --
the MK23 and MK 25 MTVR Standard Cargo Truck and the MK27 and MK 28 MTVR
Extended Cargo Truck. Generally speaking, the MTVR vehicles are
six-wheel drive all-terrain vehicles used by the military. All of the
MTVR models feature a winch, used for "self-recovery", as well as the
possibility of attaching a crane used for lifting and towing other
vehicles. The MTVR vehicles are capable carrying cargo weighing up to 15
tons on the road and cargo weighing up to 7 tons off-road. Some of the
different payloads for the MTVR vehicles include tanks, helicopters,
fuel and water assets, troops, and a variety of other equipment used by
the military.

The subject drive shafts have previously been classified under heading
8708, HTSUS, as parts of a motor vehicle of headings 8701 to 8705, and
more specifically under subheading 8708.99.6790, HTSUSA, as other parts
of drive trains. In its protest, GKN disagrees with CBP's classification
determination at the subheading level, and asserts that the subject
drive shafts are more specifically described by subheading 8709.99.4000,
HTSUSA, which provides for, in pertinent part, other parts of tractors.

**ISSUE:**

Are the subject drive shafts, which are used as parts of the MTVR Cargo
Trucks, parts of tractors, or parts of other vehicles?

**LAW AND ANALYSIS:**

Initially we note that the matter is protestable under 19 U.S.C.
§1514(a)(2) as a decision on classification and the rate and amount of
duties chargeable. The protest was timely filed on February 6, 2007,
within 180 days of liquidation on January 19, 2007, pursuant to 19
U.S.C. §1514(c)(3).

Further review of Protest 1401-07-100034 was properly accorded to
protestant pursuant to 19 C.F.R. §174.24. In accordance with Section
174.24(b), the decision against which the protest was filed is alleged
to involve questions of law or fact which have not been ruled upon by
the Commissioner of CBP or his designee or by the Customs courts.

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 2 through 6 may then be applied in order.

Because the dispute in this case is between HTSUS subheadings, GRI 6 is
applicable. It states 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, by
appropriate substitution of terms, to Rules 1 through 5, on the
understanding that only subheadings at the same level are comparable.
The HTSUS provisions under consideration in this case are as follows:

8708 Parts and accessories of the motor vehicles of headings 8701 to
8705:

\* \* \*

> Other parts and accessories:

\* \* \*

8708.99 Other:

\* \* \*

Parts of other tractors (except road tractors):

\* \* \*

8708.99.4000 Other parts for power trains...

\* \* \*

Other:

\* \* \*

Other:

8708.99.67 Other parts for power trains,

\* \* \*

8708.99.6790 Other...

In understanding the language of the HTSUS, the Harmonized Commodity
Description and Coding System Explanatory Notes (ENs) may be utilized.
The ENs, though not dispositive or legally binding, may provide
commentary on the scope of each heading of the HTSUS, and are the
official interpretation of the Harmonized System at the international
level. CBP believes the ENs should always be consulted. See T.D. 89-80,
54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Section XVI, Note 1(l), HTSUS, excludes from that section articles of
Section XVII. Section XVII, Note 2(e), HTSUS, in relevant part, excludes
from the expressions "parts" and "parts and accessories" articles of
heading 8483, provided they constitute integral parts of engines or
motors. As there is no indication that the subject drive shaft is within
the Note 2(e) exclusion, it is provided for in the most appropriate
subheading of heading 8708, HTSUS.

Additional U.S. Rule 1(a), states, in relevant part, that a
classification controlled by use is determined by the use in the United
States at, or immediately prior to, the date of exportation of goods of
that class or kind to which the imported goods belong, and the
controlling use is the principal use. In addition, EN 87.08 states that
that to be eligible under heading 8708, HTSUS, a part or accessory must
be identifiable as being suitable for use solely or principally with the
vehicles of headings 8701 to 8705. Principal use, in this context, is
that use which exceeds any other single use of the good. *See*
Headquarters Ruling Letter (HQ) 954370, dated September 1, 1993, and HQ
954256, dated September 29, 1994. Consequently, to determine the
principal use of the subject drive shaft, a discussion of the MTVR
vehicle, and its status as a truck of heading 8704 or tractor of heading
8701, is necessary.

In support of its claim that the drive shaft is principally used as a
part of a tractor, protestant asserts that the Oshkosh MTVR Cargo
Vehicle is constructed essentially for "hauling or pushing anther
vehicle, appliance, or load," thus making the vehicle classifiable as a
"tractor." Protestant submitted specification and product information
for the various models of MTVR Cargo Vehicles that utilize the subject
drive shaft.

Chapter 87, Note 2, HTSUS, defines "tractors" as vehicles "constructed
essentially for hauling or pushing another vehicle, appliance or load,
whether or not they contain subsidiary provision for the transport, in
connection with the main use of the tractor, of tools, seeds,
fertilizers or other goods." Based on the 4-digit heading text and
corresponding ENs, CBP has traditionally classified a vehicle based on
its design features which establish whether it is constructed primarily
to withstand the vertical stresses associated with transporting goods or
rear-mounted machines and their loads, or the horizontal or tractive
stresses associated with hauling or pushing another vehicle, appliance
or load. *See* HQ 963263, dated May 20, 2000.

In addition to the Note 2 definition of "tractor", EN 87.01 states that
tractors of heading 8701 "may contain subsidiary provision for the
transport, in connection with the main use of the tractor, of tools,
seeds, fertilisers and other goods, or provision for fitting with
working tools as a subsidiary function." The fact that additional
functions (i.e. transport) must be subsidiary to the primary
construction of hauling or pushing is consistent with the Note 2
definition of "tractors." In similar manner, EN 87.01 notes that the
heading covers "tractors fitted with winches (e.g. as used for hauling
out bogged-down vehicles; for up-rooting and hauling trees..."

From the submitted product information, the MTVR models are equipped
with winches for "self recovery". The winch may also be used in
situations to move another vehicle or load that is stuck. The MTVR
models are also capable of being used with a crane or lifting device as
part of the payload area in the same manner as a tow truck. Assuming
*arguendo* that these two features, alone, would indicate that a vehicle
is constructed essentially for hauling or pushing, it is apparent that
they are not indicative of the essential construction of the MTVR
models. The product information highlights the ability of the MTVR
vehicles to transport a payload over all types of terrain, rather than
its ability for hauling or pushing, as defined in Note 2. Thus, because
the MTVR models incorporating the subject drive shaft do not fit the
Note 2 definition of "tractors", they are not classifiable in heading
8701, HTSUS.

On the other hand, the MTVR vehicles do fit within the scope of heading
8704, HTSUS, which covers "\[m\]otor vehicles for the transport of
goods". The vehicles' attributes are more consistent with trucks than
tractors. For instance, the MTVR models using the subject drive shaft
feature cabs, cargo beds, bulk cargo tie downs and can support and
transport vehicles as large as helicopters. It is clear from these
features that the vehicles are designed primarily to transport goods and
equipment, making them classifiable in heading 8704, HTSUS, as trucks.
EN 87.04 supports this conclusion. It notes, in pertinent part, that the
following features, which the MTVR vehicles possess, are indicative of
the design characteristics generally applicable to the vehicles covered
by the heading:

> \(b\) Presence of a separate cabin for the driver and passengers and a
> separate open platform with side panels and a drop-down tailgate
> (pick-up vehicles);

\* \* \*

> \(d\) Presence of a permanent panel or barrier between the area for
> the driver and front passengers and the rear area;
>
> \(e\) Absence of comfort features and interior finish and fittings in
> the cargo bed area which are associated with the passenger areas of
> vehicles (e.g., floor carpeting, ventilation, interior lighting,
> ashtrays).

In addition to possessing these features, the vast majority of
information from Oshkosh (www.oshkoshtrucks.com) refers to the vehicles
as military trucks, stating the vehicles capability of transporting
cargo on and off road, and marketing the MTVR's ability to transport
"forces and supplies into placed no ordinary military truck could ever
go."

Furthemore, EN 87.04 states that the heading also covers, "(3)
**Self-loading vehicles** equipped with winches, elevating devices,
etc., but designed essentially for transport purposes" (emphasis in
original). It is evident from the information about the MTVR vehicles
that they are not tractors with subsidiary transport functions, but
rather they are indeed vehicles for the transport of goods classifiable
under heading 8704, HTSUS.

Accordingly, this office finds that the MTVR vehicles are classifiable
in heading 8704, HTSUS. Consequently, the subject drive shafts are not
parts of tractors, and are properly classified as other parts of power
trains.

**HOLDING:**

By application of GRI 6 and GRI 1, the subject inboard fixed joint drive
shaft is classifiable under heading 8708, HTSUS, and is specifically
provided for in subheading 8708.99.6790, HTSUSA (2006), which provides
for: "Parts and accessories of the motor vehicles of headings 8701 to
8705: Other parts and accessories: Other: Other: Other: Other parts of
power trains, Other." The column one, general rate of duty at the time
of entry was 2.5 percent *ad valorem*.

The protest should be DENIED. In accordance with Sections IV and VI of
the CBP [Protest/Petition Processing Handbook]{.underline} (HB 3500-08A,
December 2007, pp. 24 and 26), you are to mail this decision, together
with the CBP 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, Regulations and Rulings of the
Office of International Trade will make the decision available to CBP
personnel, and to the public on the CBP 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