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HQ 967367

JANUARY 28, 2005

CLA-2 RR:CR:GC 967367 JAS


TARIFF NO.: 8703.21.0000

Robert W. Hardy
International Trade Consultants
1647 Isabella Court
Millersville, Maryland 21108

RE: Tomcar; NY K86759 Affirmed

Dear Mr. Hardy:

In a letter to the Director, National Commodity Specialist Division, U.S. Customs and Border Protection (CBP), dated September 15, 2004, on behalf of UTV Technology, you request reconsideration of NY K86759, dated June 30, 2004, on the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a motorized vehicle, the Tomcar. Your request has been forwarded to this office for reply.

The cited ruling classified the Tomcar in a provision of heading 8703, HTSUS, as a motor vehicle principally designed for the transport of persons. You maintain this classification is incorrect and reaffirm your belief, for the reasons that follow, that the Tomcar is a works truck of heading 8709. At present, UTV is an assembler/manufacturer in the U.S., but the company contemplates moving its operation offshore in the near future.


The description of and other references to the Tomcar Ultimate Terrain Vehicle contained in NY K86759, though brief, are incorporated by reference in this decision. The Tomcar is a 4-wheeled motorized vehicle measuring approximately 111 inches x 65 inches x 64 inches. It has a nearly 80-inch wheelbase and a turning radius of 117 inches. The vehicle has a 12-inch ground clearance, weighs 1180 lbs. and has a top speed you indicate is 30 mph. The Tomcar has a tubular
frame surrounding the passenger compartment, 2-person front bucket seats with safety belts, optional doors, and roll cage with convertible canvas top. The vehicle has a rear cargo deck measuring 47.6 inches x 26 inches, with 440 lb. capacity.

The HTSUS provisions under consideration are as follows:

Motor cars and other motor vehicles principally designed for the transport of persons, including station wagons::

Other vehicles, with spark-ignition internal combustion reciprocating piston engine:

Of a cylinder capacity not exceeding 1,000 cc

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:


8709.11.00 Electrical

8709.19.00 Other


Whether the Tomcar is a works truck of heading 8709.


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. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

You maintain the Tomcar meets the description for works trucks found in the 87.09 ENs. In addition, you cite several rulings classifying vehicles which, in your opinion, were substantially similar in design and construction to the Tomcar in heading 8709.

At the time of the original ruling request of June 10, 2004, which resulted in NY K86759, you described the Tomcar as being suitable for use in warehouses, manufacturing plants and industrial operations. Your September 15 request for reconsideration contains the following statement “..the Tomcar was in use by the Israeli Defense Force as a border patrol vehicle, and Tomcars sold in the United States and Japan were used in state parks, farms and ranches as ‘works trucks’ engaged in patrol and various other tasks. All of these tasks are accomplished by employees engaged in work. All of the vehicles sold in the U.S. thus far have been used for work.” Website information for the Israeli manufacturer depicts uses of the Tomcar in Israel and not the U.S. These include patrolling army bases, off-road uses in inspecting power lines, construction, oil, mining and other companies, and by hunters and fishermen and other recreational offroad driving. You now state this was the only information available at the time the ruling request was made and is faulty. This information does not represent the principal use of these vehicles in the U.S.

HQ 954173, dated September 22, 1993, is representative of rulings you cite on vehicles substantially similar to the Tomcar which were classified in subheading 8709.19.00, HTSUS. The ruling correctly stated that heading 8709 was a classification governed by “use” and that the appropriate standard is the principal use of the class or kind of vehicles to which the subject vehicle belongs. The ruling noted further, at the top of p. 3, that the submitted literature did not delineate the environs in which the [vehicle] could be used. Lacking this information, the holding was based solely on the vehicle’s conformity to the heading 87.09 ENs which were deemed indicative of its principal use.

HQ 967422, dated January 7, 2005 sets forth the proper classification methodology applicable to the Tomcar and similar vehicles. Though dealing with a motorized vehicle materially different from the Tomcar, the ruling correctly stated that the “use” requirements of heading 8709 must be considered together with the construction and special design features in the 87.09 ENs. In this respect, we find that some of the Tomcar’s design features, which differentiate it from vehicles of heading

8703, suggest classification in heading 8709, but other such features do not. The Tomcar’s top speed, when laden, does not exceed 30 to 35 km/h and its turning radius is approximately equal to the length of the vehicle itself. Moreover, the Tomcar does not have an enclosed driving cab but does have a protective frame. These are design features appropriate to vehicles of heading 8709. But, contrary to the ENs, the Tomcar’s 2-person front bucket seats with safety belts suggests suitability for the transport of passengers by road or other public ways. In addition, the 87.03 ENs include the following features as indicative of the design characteristics generally applicable to vehicles of that heading: permanent seats with safety equipment (e.g., safety seat belts) and the absence of a permanent panel or barrier between the area for the driver and front passengers and the rear area that may be used for the transport of both persons and goods. The Tomcar has both of these design features. For these reasons, we conclude that the 87.03 ENs, read in pari materia with the 87.09 ENs are inconclusive and do not provide guidance in this case.

GRI 1 states that the headings, together with applicable section and chapter notes, constitute the first tier of legal authority for classifying goods under the HTSUS. Therefore, ENs aside, at the 4-digit heading level it is beyond dispute that heading 8709 is a “use” provision. The test is not suitability for use, but whether the principal use in the United States at or immediately prior to, the date of importation, of goods of that class or kind of goods to which the Tomcar belongs can be shown to be in factories, warehouses, dock areas, or airports for short distance transport of goods. Principal use in this context is that use which exceeds any other single use of the good.

Among the criteria sanctioned by the courts in deciding principle use cases are (1) the general physical characteristics of the merchandise, (2) the expectation of the ultimate purchasers, (3) the channels, class or kind of trade in which the merchandise moves, (4) the environment of the sale, i.e., the manner in which the merchandise is advertised and displayed, (5) the use, if any, in the same manner as merchandise which defines the class, (6) the economic practicality of so using the import and, finally, (7) the recognition in the trade of this use. Automatic Plastic Molding, Inc. v. United States, Slip Op. 02-120 (Ct. Int’l Trade, decided October 5, 2002), and cases cited.

In this case, none of the documented information mentions factories, warehouses, dock areas or airports as targeted environs in which the Tomcar might find use. In fact, the manner in which the merchandise is advertised and displayed - criteria (4) - is as an offroad vehicle that offers the “thrill and adventure of all-terrain driving” on rough terrain, by sportsmen, in patrol activities, in large outdoor areas “no utility vehicle can access and for which all-terrain vehicles are impractical and sport utility vehicles are too expensive.” This marketing does not appear to place emphasis on the short
distance transport of goods in locations required by the 8709 heading text. The available evidence does not support your claim for classification in heading 8709.


Under the authority of GRI 1, the Tomcar is provided for in heading 8703. It is classifiable in subheading 8703.21.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). NY K86759 is affirmed.

We note your statement that UTV Technology is a start-up company and we acknowledge that evidence of the Tomcar’s principal use, as explained above, may be evolving. As additional such evidence becomes available, and is brought to our attention, we may have occasion to reconsider this decision. Also, the rulings you have cited appear correct and accurate based on their particular facts and the circumstances in which they were issued. However, we plan to independently review these rulings and will initiate any modification and/or revocation proceedings found to be necessary.


Myles B. Harmon, Director
Commercial Rulings Division

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