HQ 955231

January 7, 1994

CLA-2 CO:R:C:M 955231 DWS

CATEGORY: Classification

TARIFF NO.: 8709.19.00

District Director

U.S. Customs Service

423 Canal Street, Room: 245

New Orleans, LA 70130

RE: Protest No. 2002-93-101553; Hydraulic Transporter;

Works Trucks; Special Purpose Vehicle; Explanatory Notes

87.05(9), 87.04(3), and 87.09; HQ\'s 087028 and 952400;

8705.90.00; 8704.23.00; 9903.87.00

Dear District Director:

The following is our decision regarding the request for

further review of Protest No. 2002-93-101553 concerning your action

in classifying and assessing duty on a hydraulic transporter under

the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The imported vehicle is a Scheuerle Hydraulic Transporter

(Chassis No. 4153). It is a swivel-wheel, multi-wheeled heavy duty

industrial truck which consists of a cab-under-platform design.

The transporter, constructed to transport loads of great weight,

features infinitely variable steering at transversal drive and an

electronic control for raising or lowering platform level

adjustment. No dimensions or specifications are provided, however,

review of the photographs and brochure for this vehicle indicates

that it is constructed to transport extremely heavy loads. The

transporter is used in a barge transfer facility to receive a barge

from a specialized crane at the water site, and then move the barge

across the yard to the work shop for repairs. The transporter

never leaves the barge yard, and it is not designed for highway

use.

The merchandise was entered under subheading 8705.90.00,

HTSUS, as an other special purpose motor vehicle. The entry was

liquidated on September 3, 1993, under subheading 8704.23.00,

HTSUS, as a motor vehicle for the transport of goods, G.V.W.

exceeding 20 metric tons. Goods classifiable under this provision

are dutiable at 25 percent ad valorem by virtue of subheading

9903.87.00, HTSUS, in lieu of the duty rate for subheading

8704.23.00, HTSUS. The protest was timely filed on October 01,

1993\.

The subheadings under consideration are as follows:

8705.90.00: \[s\]pecial purpose motor vehicles, other than

those principally designed for the transport

of persons or goods (for example, wreckers,

mobile cranes, fire fighting vehicles,

concrete mixers, road sweepers, spraying

vehicles, mobile workshops, mobile

radiological units.

The general, column one rate of duty for goods classifiable

under this provision is 3.7 percent ad valorem.

8704.23.00: \[m\]otor vehicles for the transport of goods:

\[o\]ther, with compression-ignition internal

combustion piston engine (diesel or semi-

diesel): \[g\].V.W. exceeding 20 metric tons.

The general, column one rate of duty for goods classifiable

under this provision is 8.5 percent ad valorem.

8709.19.00: \[w\]orks 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 . . . :

\[v\]ehicles: \[o\]ther.

Goods classifiable under this provision receive duty-free

treatment.

ISSUE:

Whether the hydraulic transporter is classifiable under

subheading 8705.90.00, HTSUS, as an other special purpose motor

vehicle, under subheading 8704.23.00, HTSUS, as a motor vehicle

for the transport of goods, G.V.W. exceeding 20 metric tons, or

under subheading 8709.19.00, HTSUS, as an other works truck.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance

with the General Rules of Interpretation (GRI\'s), taken in order.

GRI 1 provides that classification is determined according to the

terms of the headings and any relative section or chapter notes.

In understanding the language of the HTSUS, the Harmonized

Commodity Description and Coding System Explanatory Notes may be

utilized. The Explanatory Notes, although not dispositive, are to

be used to determine the proper interpretation of the HTSUS. 54

Fed. Reg. 35127, 35128 (August 23, 1989). Explanatory Note

87.05(9) (p. 1429) states that:

\[t\]his heading covers a range of motor vehicles, specially

constructed or adapted, equipped with various devices that

enable them to perform certain non-transport functions,

i.e., the primary purpose of a vehicle of this heading is

not the transport of persons or goods.

\[t\]he heading includes:

\(1\) - (8) xxx

\(9\) Lorries fitted with stacking mechanisms (i.e., with a

platform which moves on a vertical support and is

generally powered by the vehicle engine). But the

heading excludes self-loading motor vehicles equipped

with winches, elevating devices, etc., but which are

constructed essentially for the transport of goods

(heading 87.04).

In HQ 087028, dated August 13, 1990, a vacuum tank truck was

held to be classifiable under heading 8704, HTSUS. In precluding

the truck from classification under heading 8705, HTSUS, we stated

that:

\[o\]ur review of the \[Explanatory Notes\] leads to the

conclusion that vehicles of heading 8705 must possess

equipment designed to perform a specialized service or

services at the job site, with any transport function

clearly subsidiary.

The principal function of the subject hydraulic transporter

is as a transporter of barges for repair. It is our understanding

that the transporter has no other intended purpose. Therefore,

because the transporter is equipped with elevating devices and is

essentially for the transport of goods, in accordance with

Explanatory Note 87.05(9) and HQ 087028, it is not classifiable

under subheading 8705.90.00, HTSUS.

Explanatory Note 87.04 (3) (p. 1428) states that:

\[t\]his heading also covers:

\(1\) - (2) xxx

\(3\) Self-loading vehicles equipped with winches, elevating

devices, etc., but designed essentially for transport

purposes.

However, in part, Explanatory Note 87.09 states that:

\[t\]his heading covers a group of self-propelled vehicles of

the types used in factories, warehouses, dock areas or

airports for the short distance transport of various loads

(goods or containers) or, on railway station platforms, to

haul small trailers. . .

The main features common to the vehicles of this heading

which generally distinguish them from the vehicles of

heading . . . 87.04 may be summarised as follows:

\(1\) Their construction and, as a rule, their special design

features, make them unsuitable for the transport of

passengers or for the transport of goods by road or

other public ways.

\(2\) Their top speed when laden is generally not more than

30 to 35 km/h.

\(3\) Their turning radius is approximately equal to the

length of the vehicle itself.

Vehicles of this heading do not usually have a closed

driving cab, the accommodation for the driver often being

no more than a platform on which he stands to steer the

vehicle. Certain types may be equipped with a protective

frame, metal screen, etc., over the driver\'s seat. . .

Works trucks are self-propelled trucks for the transport of

goods which are fitted with, for example, a platform or

container (sometimes designed for elevating) on which the

goods are loaded.

In HQ 952400, dated February 9, 1993, we dealt with

classification of industrial trucks under the HTSUS. In

classifying the trucks under heading 8709 as works trucks, we

stated that:

\[t\]he very heavy weights of the loads the trucks are

designed to carry, considered in addition to the weights

of the vehicles themselves, could not or would not normally

be carried by road or other public ways. The trucks must be

used on surfaces and in areas which are amenable to the

operation of large trucks with very heavy loads. The

maximum speeds when laden and the turning radius\' of the

trucks are well within the ranges commonly associated with

trucks designed for the short distance transport of goods

within factories and other industrial sites.

\[t\]he trucks do not have all the features commonly

associated with heading 8709 works trucks (e.g., open

driving cab). However, considering all the features of the

trucks, including those described above, it is Customs

position that the trucks are properly described as works

trucks . . .

As with the industrial trucks in HQ 952400, it is our position

that the subject hydraulic transporter is classifiable under

subheading 8709.19.00, HTSUS, as a works trucks. It does not have

an open cab, but it does possess the features common to the trucks

in heading 8709, HTSUS. The transporter is not used for highway

use, it moves at a slow pace, it possesses an elevating platform,

and, as it is designed for transporting barges, it is used to carry

very heavy loads.

Therefore, because the hydraulic transporter is specifically

classifiable under heading 8709, HTSUS, it is our position that it

is distinguishable from the vehicles of heading 8704, HTSUS.

HOLDING:

The hydraulic transporter is classifiable under subheading

8709.19.00, HTSUS, as an other works truck.

Because reclassification of the merchandise as indicated above

will result in a lower rate of duty than claimed, you are

instructed to allow the protest in full.

In accordance with Section 3A(11)(b) of Customs Directive 099

3550-065, dated August 4, 1993, Subject: Revised Protest Directive,

this decision, together with the Customs Form 19, should be mailed

by your office 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 take steps to

make the decision available to Customs personnel via the Customs

Rulings Module in ACS and the public via the Diskette Subscription

Service, Lexis, Freedom of Information Act, and other public access

channels.

Sincerely,

John Durant, Director