HQ 953715

JULY 16 1993

CLA-2:CO:R:C:M 953715 JAS

CATEGORY: Classification

TARIFF NO.: 8704.90.00

District Director of Customs

Area/Port of Blaine

Key Tower Bldg. #2200

1000 2nd. Avenue

Blaine, WA 98104-1049

RE: PRD 3004-92-100128; Honda Power Carrier Model HP400;

Pedestrian Controlled Works Truck, Motorized, Tracked

Vehicle for Transport of Goods Over Short Distances,

Subheading 8709.19.00; Motor Vehicle for the Transport

of Goods, Heading 8704

Dear Sir:

This is our decision on Application for Further Review of

Protest No. 3004-92-100128, filed against your action in

classifying the Honda Power Carrier Model HP400, from Japan. The

entry was liquidated on June 5, 1992, and this protest timely

filed on September 1, 1992.

FACTS:

The vehicle in question is a pedestrian controlled, tracked

vehicle designed to transport loads up to 770 lbs. (level) and

550 lbs. (inclined) at slow speeds over short distances. The

Power Carrier features a 4 hp., single cylinder air cooled engine

that generates forward ground speeds of 76 ft./min. in first gear

and 191 ft./min. in second gear, a transmission with 2 forward

and 1 reverse speeds, and a 32 inch wheelbase. The vehicle

weighs 352 lbs. and measures 74 in. x 25 in. x 41 in., with an

adjustable cargo bed measuring 43.7-58 in. x 20-30 in. x 7 in.

The Power Carrier is advertised for heavy work around

nurseries and greenhouses, etc., as well as factories,

warehouses, construction sites and railyards for moving machinery

and large bulky parts over short distances.

The HP400 was entered under the provision for self-propelled

works trucks, of the type used in factories, warehouses, dock

areas or airports for short distance transport of goods. Noting - 2 -

its cargo-carrying capability, you liquidated the entry under an

appropriate provision for motor vehicles for the transport of

goods.

The provisions under consideration are as follows:

8704.90.00 Motor vehicles for the transport of goods:

Other\...25 percent under heading 9903.87.00

\* \* \* \* \*

8709.19.00 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: Other\....Free

ISSUE:

Whether the vehicle in issue is a works truck of heading

8709\.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff

Schedule of the United States (HTSUS) in accordance with the

General Rules of Interpretation (GRIs). GRI 1 states in part

that for legal purposes, classification shall be determined

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.

It is apparent that the Power Carrier is principally

designed to carry goods. It is described by heading 8704. As to

the claimed classification, the provisions of heading 8709 are

governed by \"use.\" Group Italglass U.S.A. v. United States, Slip

Op. 93-46, dated March 29, 1993, and related cases. The standard

in this case is the principal use of the class or kind of

vehicles to which the vehicle under protest belongs.

The HP400 is depicted in literature hauling heavy parts

inside a railway roundhouse. It is also advertised for use in

and around nurseries and greenhouses. That it is a tracked

vehicle suggests substantial off-road uses, for example, in rocky

and hilly terrain such as farms, public lands, forests, golf

courses, mines or quarries above or below ground. The design

characteristics of the HP400 suggest a multitude of cargo

carrying uses both indoors and outdoors. It is marketed as a

dependable, multipurpose vehicle that covers a variety of work

needs. In our opinion, the record does not support a conclusion

that the Honda Power Carrier HP400 belongs to a class or kind of - 3 -

vehicles used in factories, warehouses, dock areas or airports

for short distance transport of goods.

HOLDING:

Under the authority of GRI 1, the Honda Power Carrier HP400

is provided for in heading 8704. It is classifiable in

subheading 8704.90.00, as liquidated.

The protest should be denied. A copy of this decision

should be attached to the Customs Form 19 and mailed to

protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director