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HQ H019468

February 26, 2008



Tariff No.: 8704.90.00, HTSUS

James Caffentzis, Esq.
250 Moonachie Road, 5th Floor
Moonachie, NJ 07074

RE: Electric truck from China; N016473 affirmed

Dear Mr. Caffentzis:

This is in response to your letter of November 5, 2007, on behalf of Miles Automotive Group, Ltd. of Santa Monica, California (“Miles”), requesting reconsideration of N016473, dated September 13, 2007, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of electric truck model ZX40ST. In N016473, issued by the National Commodity Specialist Division, Customs and Border Protection (CBP), the electric truck model ZX40ST was held to be classified as a motor vehicle for the transport of goods, in subheading 8704.90.00, HTSUS. We have reviewed the classification in N016473 and affirm it.


In N016473, electric truck model ZX40ST was described as follows:

The ZX40ST is powered by six 12-Volt batteries which produce 11 kilowatts of energy and 8.445 hp. It has a maximum payload weight of 3,000 lbs., is equipped with a cargo bed, a tailgate and 2-seated full cab, will attain a maximum speed of 25 mph and measures 12 feet in length, 4 foot 11 inches in width, and 5 foot 11 inches in height. The turning radius of the ZX40ST is 33.4 feet.

In your reconsideration request, you clarify that the cargo rating is approximately 300 lbs., while the gross vehicle weight rating (GVWR) is 3,000 lbs. GVWR refers to the maximum allowable total weight of the vehicle itself, plus fuel, passengers, cargo, and trailer tongue. In addition you add that the ZX40ST is capable of a 25 mph (40.23 km/h) maximum speed when unloaded.

You have submitted an affidavit from Miles’ President, which states that the intended use for the ZX40ST is “college campuses, ports and airport facilities, state prisons, water treatment plants etc.” You assert that the ZX40ST is correctly classified in heading 8709 as a works truck. You assert that “[t]he correct interpretation of heading 8709 is whether the vehicle is of the type used in dock areas or airports for short distant transport of goods” (emphasis provided), and therefore the ZX40ST falls within that class of vehicles. You take the position that the analysis in N016473 was too restrictive by focusing on whether the ZX40ST possessed the features described in the Explanatory Notes.


Whether the electric truck model ZX40ST is classifiable as a works truck of heading 8709, HTSUS, or as a motor vehicle for the transport of goods of heading 8704, HTSUS.


Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs 1 through 5.

The HTSUS provisions under consideration are as follows:

Motor vehicles for the transport of goods:

8704.90.00 Other

8709 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; ; parts of the foregoing vehicles:



The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system. CBP believes the EN’s should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The ENs on p. XVII-8709-1 list certain design features of the works trucks of heading 8709, which distinguish them from the vehicles of heading 8704. Among these are 1) their construction and special design features which make them unsuitable 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. In addition, the ENs provide that vehicles of heading 8709 do not usually have a closed driving cab, the accommodation for the driver often being no more than a platform on which to stand. Certain types may be equipped with a protective frame or metal screen; such works trucks are normally fitted with a platform or container on which the goods are loaded.

In HQ 965246, dated November 6, 2001, we stated that vehicles similar to the truck at issue in that case:
are marketed to a wide range of potential users with the vehicles’ intended purpose in mind, i.e., work. They are sold for use in golf course maintenance, to haul fertilizer, sand, etc., even personnel. These uses have expanded to include hunters and other recreational users and their gear. Among the users are universities with closed campuses and businesses with large areas to cover but limited road access, in transporting materials, security personnel, etc. Some vehicles even have specially constructed beds for stretchers for use by medical-rescue teams in rough terrain.

Heading 8709 covers vehicles of a kind used in the environments specified in the text. This is a provision governed by “use.” See Group Italglass v. United States, 17 CIT 226 (1993). As such, it is the principal use of the class or kind of vehicles to which the ZX40ST belongs that governs classification here.

Because of the wide range of potential uses, both on and off-road, we agree with the analysis used in N016473, which focused on the 8709 ENs. This is consistent with CBP’s analysis to determine whether a vehicle is classified in heading 8709, HTSUS. See HQ 954173, dated September 22, 1993, HQ 965246, supra, and HQ 964598, dated November 13, 2001.

In HQ 954173, it was acknowledged in the analysis that the guidelines in the ENs are “approximations”, and determined that the vehicles in issue are classified in heading 8709, HTSUS, although the turning radius and maximum speed exceeded the variables set forth in the ENs. In HQ 954173, the turning radius of the vehicles was 22 to 54 inches longer than the length of the vehicle, and the top speed of certain models, when fully loaded, was slightly in excess of the 35 km/h set forth in the ENs.

In this case, the turning radius of the ZX40ST is almost three times the length of the vehicle. The length of the vehicle is 144 inches and the turning radius is over 396 inches. The fact that the turning radius of the ZX40ST is that large, indicates that the ZX40ST is actually precluded from classification in heading 8709, as it is incapable of maneuvering in tight places within the types of areas described in the heading text. You assert that “[i]ts turning radius does not affect its use in such venues because it is not operating within a restricted area.” We disagree. The ability to operate within a small area is a significant characteristic of the types of vehicles that are classifiable in heading 8709, HTSUS.

We conclude that, in light of the great turning radius, the ZX40ST does not belong to the class or kind of vehicle principally used as a works truck of heading 8709, HTSUS. Therefore, classification under heading 8709, HTSUS, is precluded. The ZX40ST does have certain features (cargo bed with fold down sides and tailgate) which indicate it is designed for the transport of goods, as opposed to the transport of persons. Consequently, the ZX40ST meets the terms of heading 8704, HTSUS, specifically subheading 8704.90.00, HTSUS, which provides for “[m]otor vehicles for the transport of goods: other.”


Under the authority of GRI 1, the Miles Automotive Group, Ltd. electric truck model ZX40ST is provided for in heading 8704, HTSUS. It is classifiable in subheading 8704.90.0000, HTSUSA, which provides for “[m]otor vehicles for the transport of goods: other,” with a column one, general duty rate of 25%.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.


Myles B. Harmon
Director, Commercial and

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