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HQ 950672


February 12, 1992

CLA-2 CO:R:C:M 950672 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 8428.90.00; 8430.69.00

District Director
U.S. Customs Service
511 N.W. Broadway Federal Bldg.
Portland, Oregon 97209

RE: Protest No. 0101-91-10097; Double Ridger; Trailed Harvester; "agricultural"/"harvesting" machinery; EN 84.28; EN 84.30; 8432; EN 84.32; HQ 069816; NY 800556; 8433; EN 84.33; McGraw-Hill Encyclopedia of Science & Technology ["peat"]

Dear Sir:

This is our response regarding Protest No. 0101-91-10097, dated September 18, 1991, which concerns the tariff classification of double ridgers and trailed harvesters, used to harvest peat, under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The double ridger and the trailed harvester are used in the harvesting of peat. Both articles are attached to a tractor. The double ridger consists of outrigger appendages with half- cylindrical shapes attached. Its function is to clean, scrape and plow peat (soil) and then lay it in long ridges. The protestant states that the double ridger is similar to a snow plow with a "V" shape.

The trailed harvester gathers the ridges of peat and conveys them to a trailed vehicle. It consists of an endless screen belt made up of steel rods that passes over the ridges of peat. The protestant states that it is nothing more than a conveyor, which, when attached to a tractor, picks up the peat and places it into a trailed vehicle. The protestant further states that the trailed harvester is similar to a potato harvester.

The double ridger was entered under subheading 8432.80.00, HTSUS, which describes other agricultural, horticultural or forestry machinery. The trailed harvester was entered under subheading 8433.59.00, HTSUS, which describes other harvesting machinery. Both the double ridger and the trailed harvester were held to be classifiable under subheading 8430.69.00, HTSUS, which provides for "[o]ther moving, grading, leveling, scraping, excavating, tamping, compacting, extracting or boring machinery, for earth, minerals or ores . . . [o]ther machinery, not self- propelled . . . [o]ther." The corresponding rate of duty for articles of this subheading is 2.5% ad valorem.

ISSUE:

Whether the double ridger and the trailed harvester are "agricultural" or "harvesting" machinery under the HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."

1. Double Ridger

The protestant contends that the double ridger is classifiable under Heading 8432, HTSUS--specifically under subheading 8432.80.00, HTSUS, or, in the alternative, subheading 8432.10.00, HTSUS. Heading 8432, HTSUS, provides for "[a]gricultural, horticultural or forestry machinery for soil preparation or cultivation; lawn or sports ground rollers; parts thereof." Subheading 8432.80.00, HTSUS, describes other agricultural, horticultural or forestry machinery. Subheading 8432.10.00, HTSUS, describes plows for soil preparation or cultivation.

The double ridger was held to be classifiable under subheading 8430.69.00, HTSUS, which provides for "[o]ther moving, grading, leveling, scraping, excavating, tamping, compacting, extracting or boring machinery, for earth, minerals or ores . . . [o]ther machinery, not self-propelled . . . [o]ther." The Harmonized Commodity Description and Coding System Explanatory Note (EN) for Heading 8430, HTSUS, pg. 1203, states that "[t]his heading covers machinery, other than the self-propelled machines of heading 84.29 and agricultural, horticultural or forestry machinery (heading 84.32), for 'attacking' the earth's crust . . . or for preparing or compacting the terrain [emphasis in
original]." Thus, if the article in question is classifiable under Heading 8432, HTSUS, it is excluded from Heading 8430, HTSUS.

Heading 8432, HTSUS, describes agricultural machinery for soil preparation or cultivation. It is clear, however, that the harvesting of peat moss is not an agricultural or horticultural pursuit, nor is equipment used to collect peat harvesting machinery. In the United States, the principal use of peat is for soil improvement. McGraw-Hill Encyclopedia of Science & Technology, 6th Edition, Volume 13, pg. 173 (1987). In HQ 069816, dated March 14, 1983, this office stated as follows:

The harvesting of peat moss is not directly related to the production of food or clothing. In this sense, therefore, peat harvesting is not an agricultural pursuit. Neither is peat grown as a horticultural product. Peat is the dead or decaying material from various plants and trees and is used as a soil conditioner or as a fuel. Therefore, equipment used to collect peat are neither harvesting machinery nor agricultural or horticultural implements described in 666.00, TSUS.

See also NY 800556, dated May 11, 1981.

Moreover, EN 84.32, pgs. 1208-1209, states that the machinery of this heading is used for one or more of the following classes of agricultural, horticultural or forestry work:

(I) Preparing the soil for cultivation (clearing, breaking, tilling, ploughing, loosening, etc.).
(II) Spreading or distributing fertilisers, including manure, or other products to improve the soil.
(III) Planting or sowing.
(IV) The working or maintenance of the soil during the growing period (hoeing, weeding, cleaning, etc.).

The double ridger does not perform any of the classes of work specified above.

Further guidance can be found under the HTSUS, where self- propelled peat excavators are provided for under Heading 8430, HTSUS, which describes "[o]ther moving, grading, leveling,
scraping, excavating, tamping, compacting, extracting or boring machinery, for earth, minerals or ores . . .," rather than under the provisions for agricultural or harvesting machinery. For all of the foregoing reasons, the double ridger is not classifiable under Heading 8432, HTSUS.

The double ridger--which cleans, scrapes and plows peat, before laying it in long ridges--was properly classified under subheading 8430.69.00, HTSUS, which describes other earth excavating, scraping or levelling machinery, not self-propelled.

2. Trailed Harvester

The protestant contends that the trailed harvester is classifiable under subheading 8433.59.00, HTSUS, which provides for [h]arvesting or threshing machinery, including straw or fodder balers . . . [o]ther harvesting machinery; threshing machinery . . . [o]ther." The protestant claims that there is no indication that "harvesting or threshing machinery" must be agricultural in scope. However, EN 84.33, pg. 1211, states that "[t]his heading covers machines used in place of hand tools, for the mechanical performance of the following operations:

(A) Harvesting of agricultural crops (e.g., reaping, croplifting, gathering, picking, threshing, binding or bundling). Hay or grass mowers, and straw or fodder balers are also included in this heading.
(B) Machines for cleaning, sorting or grading eggs, fruit or other agricultural produce [emphasis added]."

Because peat is not an agricultural crop, the trailed harvester does not meet these descriptions. Thus, it cannot be classified under Heading 8433, HTSUS.

The trailed harvester was found to be classifiable under the same provision as the double ridger--subheading 8430.69.00, HTSUS. As mentioned above, EN 84.30, pg. 1203, states that this heading covers machinery for "attacking" the earth's crust or for preparing or compacting the terrain. The trailed harvester gathers the ridges of peat laid down by the double ridger, and then conveys them to a trailed vehicle.

It is our opinion that the harvester does not "attack" the earth's crust. It is not used for cutting and breaking down rock, earth, or coal, nor is it for earth excavation, digging, or drilling. Moreover, the harvester is not for preparing or compacting the terrain--it merely picks up the peat that has been laid in rows by the double ridger, and places it, by way of a
conveyor, into a trailed vehicle. Thus, the article in question is not described by Heading 8430, HTSUS.

Heading 8428, HTSUS, provides for "[o]ther lifting, handling, loading or unloading machinery (for example, lifts, escalators, conveyors, teleferics)." EN 84.28(III)(C), pg. 1199, states that this heading covers "[m]echanical loaders for picking coal, ores, excavated earth, pebbles, sand or other bulk materials. These machines are usually combined with a conveyor or an elevator (shaker type conveyor-loader, pick-up conveyor- loader, etc.) [emphasis in original]." The trailed harvester gathers and then conveys peat to a trailed vehicle by means of an endless screen belt. The protestant states that the harvester is nothing more than a conveyor, which, when attached to a tractor, picks up peat and places it into another vehicle. As such, the trailed harvester, which is similar to the mechanical loaders described above, is described by Heading 8428, HTSUS, specifically under subheading 8428.90.00, HTSUS.

HOLDING:

The Double Ridger is classifiable under subheading 8430.69.00, HTSUS, which provides for "[o]ther moving, grading, leveling, scraping, excavating, tamping, compacting, extracting or boring machinery, for earth, minerals or ores . . . [o]ther machinery, not self-propelled . . . [o]ther." The corresponding rate of duty for articles of this subheading is 2.5% ad valorem.

The Trailed Harvester is classifiable under subheading 8428.90.00, HTSUS, which provides for "[o]ther lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics) . . . [o]ther machinery." The corresponding rate of duty for articles of this subheading is 2% ad valorem.

You are instructed to deny the protest, except to the extent reclassification of the trailed harvester as indicated above results in a net duty reduction and partial allowance. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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