HQ 0082779 - Decision on Application for Further Review of Protest No. 2904-7-000280, November 10, 1987 - United States International Trade Commision Rulings

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HQ 082779

October 31, 1988

CLA-2 CO:R:C:G 082779 AS

CATEGORY: CLASSIFICATION

TARIFF NO.: Item No. 660.00 664.08 TSUS

District Director of Customs
Federal Building, Room 198
N.W. Broadway & Glisan Streets
Portland, Oregon 97209

RE: Decision on Application for Further Review of Protest No. 2904-7-000280, November 10, 1987

Dear Sir:

This protest was filed against your decision in the liquidation of entry No. 331-3869587-0 of August 14, 1987, liquidated on October 16, 1987. Protest was timely filed and forwarded to Headquarters for further review on the basis that the protest involves "questions which have not been the subject of a Headquarters ruling or court decision."

FACTS:

The merchandise involved is the McConnel Basic Digger, and a 16 inch bucket, a 13 inch bucket, a 140 MM trenching bucket and a 1.2 M RH head for use with the digger. The M190 is a hydraulically operated backhoe. It is a fully self contained device which is designed to be attached to the PTO of 17 hp compact tractors. Protestant asserts that the equipment should be classified under item 666.00, Tariff Schedules of the United States (TSUS), as agricultural implements rather than your classification as excavating and levelling machinery and parts under item 664.08, TSUS.

ISSUE:

The issue is whether the articles are classifiable as agricultural implements.

LAW AND ANALYSIS:

Protestant makes two arguments in favor of classification as an agricultural implement under item 666.00, TSUS. It is claimed that the entered equipment is an entirety, and the equipment is too small for industrial application.

Both claims must fail. The doctrine of entireties does not apply where the imported article is not imported with the article with which it is claimed to be an entirety. United States v. Baldt Anchor, Chain & Forge Division of the Boston Metals Co. et al., 59 CCPA 122, C.A.D. 1051, 459 F.2d 1403 (1972). The equipment now under consideration was imported separately from the compact tractor.

A machine must be shown to be chiefly used for agricultural purposes to qualify for classification under item 666.00, TSUS. Staalkat of America, Inc. v. United States, 56 CCPA 86, C.A.D. 959, 417 F.2d 789 (1969). Chief use is that use which exceeds all other uses combined. General Headnote 10(e)(i), TSUS. Protestant has not shown the chief use of the articles. The unsupported statement that the equipment is too small for indus- trial applications falls far short of the proof necessary to show chief use. In fact, the literature submitted indicates that the equipment is ideally suited for use by contractors for small earth moving jobs such as burying water and gas supply lines and preparing and finishing construction sites.

HOLDING:

The equipment is properly classifiable under item 664.08, TSUS. You should deny the protest in full. A copy of this decision should be attached to the Form 19 Notice of Action to be sent to the protestant.

Sincerely,

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