> **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.
>
> \- 2 -

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]{.underline} 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:

8708. 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

\- 3 -

**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]{.underline}, 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]{.underline} 956604, dated
September 26, 1994, which states, in relevant part, that "trailers and
semi-trailers of heading 8716 are non-mechanically propelled
vehicles...designed 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]{.underline}
mechanically propelled is substantiated by the relevant 8716 ENs.
Counsel's fourth argument that [HQ]{.underline} 961261 supports
classification of the bogie wagon as a trailer, in heading 8716, is
misplaced, as that ruling was revoked by [HQ]{.underline} 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.

\- 4 -

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]{.underline} [NY]{.underline}
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