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HQ 967422

January 7, 2005

CLA-2 RR:CR:GC 967422 JAS


TARIFF NO.: 8704.90.00

Port Director, U.S. Customs and Border Protection 301 E. Ocean Blvd., Suite 1400
Long Beach, CA 90802

RE: Protest 2704-04-101722; Lawn Utility Vehicle, LUV Cart

Dear Port Director:

This is our decision on Protest 2704-04-101722, filed by counsel on behalf of Yardware, Inc., against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a lawn utility vehicle called the LUV Cart.

The goods were entered under a provision of heading 8709, HTSUS, as works trucks, self-propelled. They were reclassified under a provision of heading 8704, HTSUS, as motor vehicles for the transport of goods, and the entry liquidated under this provision. This protest was timely filed on July 30, 2004.


The merchandise at issue is a lawn utility vehicle, the LUV Cart. This is a three-wheeled, garden utility cart propelled by a battery-powered electric motor. The LUV Cart steers by a rear-mounted handle, equipped with cup holder and hooks for small tools, and moves at a forward speed of 2mph. It carries up to 200 pounds in its 5 cubic foot bed and is designed to traverse typical backyard inclines of up to a 20-degree incline.

The HTSUS provisions under consideration are as follows:

8704 Motor vehicles for the transport of goods:

Other, with compression-ignition internal combustion piston engine (diesel or semi-diesel):

8704.21.00 G.V.W. not exceeding 5 metric tons

8704.90.00 Other

Works trucks, self-propelledof 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 LUV Cart 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. Customs and Border Protection believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Counsel makes the following arguments in support of the claim as works trucks under heading 8709: relevant ENs list the main features which distinguish the vehicles of heading 87.09 from those of heading 87.04, i.e., their construction which generally makes them unsuitable for the transport of passengers or goods by road or other public ways, their top speed when laden is generally not more than 30 to 35 km/h; their turning radius is approximately equal to the length of the vehicle itself. Finally, vehicles of heading 87.09 may be pedestrian controlled. The LUV Cart is said to meet this description. Other ENs list design characteristics generally applicable to vehicles of
heading 87.04: bench-type seats, a separate cabin for the driver and passengers, absence of rear windows; presence of a permanent panel or barrier between the area for the driver and front passengers and the rear area, 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). The LUV Cart, it is claimed, contains none of these design features. Finally, counsel maintains that HQ 965246, dated November 6, 2001, illustrates the methodology CBP utilizes in classifying motorized vehicles in heading 8709. In that decision, the Micro Truk was found to be a works truck of that heading notwithstanding the fact it was not used in a factory, warehouse, dock area or airport. Classification was apparently based on two major factors, the Micro Truk was sold for use in applications similar to the LUV Cart, i.e., in golf course maintenance for the short distance transport of materials such as fertilizer or sand for work purposes, and it possessed construction and special design features listed in the 87.09 ENs.

The LUV Cart is at least, prima facie, described by heading 8704. The issue is the applicability of heading 8709. While the ENs are often instructive as to the scope of the headings under the HTSUS, we find that in this instance they provide little guidance. For example, neither the design features listed in the 87.09 ENs, as they may apply to the LUV Cart, nor the vehicle’s intended end use service applications, are in dispute. But, the 87.09 ENs contain additional references which must also be considered. For example, in vehicles of [heading 8709] the accommodation for the driver often [is] 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, and works trucks of the heading are self-propelled trucks for the transport of goods which are fitted with, for example, a platform or container on which the goods are loaded. These descriptions clearly do not apply to the LUV Cart.

The ENs aside, at the 4-digit level, it is beyond dispute that heading 8709 is a “use” provision. Thus, to prevail in its claim under heading 8709, counsel must show that the LUV Cart belongs to a class or kind of self-propelled vehicles solely or principally used 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.

The only documented evidence in the protest file as to the LUV Cart’s uses are Yardware’s descriptive literature, which counsel submitted in support of the claim under heading 8709. This identifies the LUV Cart both as a lawn utility vehicle and as a power-assisted garden cart [which] “ends the hassle and frustration of ordinary wheelbarrows and garden carts.” (Emphasis added). The literature identifies the LUV Cart as “environmentally friendly” and advertises it for use by “the most devoted gardener” as well as “weekend warriors.” In addition, Comfort HouseR, a leading on-line shopping site (www.comforthouse.com/gardencart.html), advertises the LUV Cart as a “battery-driven lawn and garden cart, the easiest way ever to do yard work!” and as a “motorized lawn utility vehicle designed to traverse typical backyard inclines up to a 20-degree angle.” The available evidence clearly supports a finding that the LUV Cart belongs to a class or kind of vehicle principally used in and around the home for garden and yard maintenance and general utility purposes. The design features of the LUV Cart are substantially different from those of the Micro Truck. Unlike the Micro Truck, the subject of HQ 965246, there is no evidence to support a principal use claim for the LUV Cart under heading 8709.

CBP’s classification of motorized vehicles substantially similar in design and function to the LUV Cart in subheading 8704.90.00, HTSUS, has been consistent and longstanding. See HQ 085917, dated March 1, 1990, HQ 963263, dated May 20, 2000, HQ 964163, dated January 29, 2001, and NY J87972, dated August 20, 2003. In addition, NY H80034, dated April 26, 2001, which classified an electric powered wheelbarrow nearly identical to the LUV Cart in subheading 8704.90.00, HTSUS, is particularly relevant, as is HQ 958326, dated December 20, 1995, on the classification of a hand operated, battery-powered 3-wheeled chassis for carrying golf clubs. In that case, heading 8704 was found to prevail over heading 8709, in part, at least, because the merchandise did not qualify under the latter heading.


Under the authority of GRI 1, the Lawn Utility Vehicle, LUV Cart, is provided for in heading 8704. It is classifiable in subheading 8704.90.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as other motor vehicles for the transport of goods.

The protest should be DENIED. In accordance with the Protest/ Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 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 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.


Peter T. Lynch for Myles B. Harmon, Director
Commercial Rulings Division

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