Positioning Tool; Explanatory Note 87.16; Non-Mechanically Propelled Vehicle

HQ 955415 February 09, 1994 CLA-2 CO:R:C:M 955415 DWS CATEGORY: Classification TARIFF NO.: 8716.80.50 Mr. Brian Johnson Border Brokerage Company P.O. Box 3549 Blaine, WA 98231 RE: Positioning Tool; Explanatory Note 87.16; Non-Mechanically Propelled Vehicle Dear Mr. Johnson: This is in response to your letter of October 8, 1993, on behalf of Ebco Industries, to the Regional Commissioner of Customs, New York, concerning the classification of a positioning tool under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter has been referred to this office for a response. FACTS: The merchandise consists of a positioning tool (PT), a product of Canada. The PT is specifically designed to hold aircraft parts and is used exclusively by the aerospace industry. It is comprised of a steel wheeled base supporting a steel dolly assembly and measures approximately 8 feet 4 inches x 6 feet 6 inches. The dolly assembly is designed to hold in place a piece of metal while transporting the metal approximately 20 to 30 feet into a stream of water. A separate machine sprays a stream of water at the metal piece so that engineers can determine if the metal has been sufficiently machined to be considered acceptable for the metal piece's intended purpose. The PT is guided manually (it possesses neither an engine nor a winch system) into the stream of water by use of a loading ramp which measures 18 feet x 9 feet, rising 2 feet off the ground. The presence of a beam, track, and grating ensures that the PT is in an exact position when the water strikes the metal piece which is being tested. The subheading under consideration is as follows: 8716.80.50: . . . other vehicles, not mechanically propelled . . . : [o]ther vehicles: [o]ther. The general, column one rate of duty for goods classifiable under this provision is 3.2 percent ad valorem. ISSUE: Whether the positioning tool is classifiable under subheading 8716.80.50, HTSUS, as an other vehicle, not mechanically propelled. 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). In part, Explanatory Note 87.16 (pp. 1439 - 1440) states that: [t]his heading covers a group of non-mechanically propelled vehicles (other than those of the preceding headings) equipped with one or more wheels and constructed for the transport of goods or persons. . . The vehicles of this heading are designed to be towed by other vehicles . . . to be pushed or pulled by hand or to be drawn by animals. The heading includes: (A) xxx (B) Hand propelled vehicles. This group includes: (1) Trucks and trolleys of various kinds including those specialised for use in particular industries (in the textile or ceramic industries, in dairies, etc.). (2) - (8) xxx It is our position that, because no other provision under the HTSUS specifically describes the merchandise, the PT is classifiable under subheading 8716.80.50, HTSUS. It is a manually and non-mechanically propelled vehicle which is constructed for the transport of aircraft parts. Although the PT does not travel far distances, it still transports metal pieces from one point to another. Also, the PT is designed for specialized use in the aerospace industry. HOLDING: The positioning tool is classifiable under subheading 8716.80.50, HTSUS, as an other vehicle, not mechanically propelled. Sincerely, John Durant, Director