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HQ 954495




OCTOBER 20 1993

CLA-2:CO:R:C:M 954495 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8701.90.10, 8433.51.00

Mr. Jimmy Bryson
J.R. International, Inc.
P.O. Box 1354
Stillwater, OK 74076

RE: Tractors, Combine Harvesters for Agricultural Use; U.S. v. F.W. Myers & Co., Inc., C.D. 4256, aff'd., C.A.D. 1097, HQ 951434, HQ 951506

Dear Mr. Bryson:

In a letter dated June 21, 1993, you inquire as to the tariff classification of certain wheeled tractors and harvesting combines from Poland.

FACTS:

The following wheeled tractor models are identified in submitted literature as follows with the indicated dimensions and capabilities:

Dimensions Weight Engine Gears pto

Ursus 912 4160 x 2700 x 1970 4600 4 16/8 y Ursus 914 4160 x 2700 x 1970 5050 4 16/8 y Ursus 1012 4160 x 2700 x 1970 4710 4 16/8 y Ursus 1014 4160 x 2700 x 1970 5188 4 16/8 y Ursus 1222 4445 x 2700 x 1970 4690 6 16/8 y Ursus 1224 4590 x 2700 x 2270 5588 6 16/8 y Ursus 1614 4590 x 2700 x 2270 6180 6 12/6 y

The Bizon combine harvesters in issue are identified in the literature as the Sampo model 2020, and the Super Z 056 and Record Z 058. - 2 -

The provisions under consideration are as follows:

8433.51.00 Other harvesting machinery; threshing machinery: Combine harvester-threshers
...Free

8701.90.10 Tractors (other than tractors of heading 8709): Other: Suitable for agricultural use...Free

8701.90.50 Tractors (other than tractors of heading 8709): Other: Other...2.2 percent

ISSUE:

Whether the tractor models in issue are suitable for agricultural use.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined 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 Customs Cooperation Council's official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs 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. Customs believes the notes should always be consulted. See T.D. 89-80.

Relevant ENs at p. 1424 state that tractors of heading 8701 are wheeled or track-laying vehicles constructed essentially for hauling or pushing another vehicle, appliance or load. They may contain subsidiary provision for the transport, in connection with the main use of the tractor, of tools, seeds, fertilizers or other goods, or provision for fitting with working tools as a subsidiary function. The tractor models in issue are clearly goods of heading 8701. - 3 -

The expression "suitable for agricultural use" has been interpreted by the courts under the HTSUS' predecessor tariff code, the Tariff Schedules of the United States (TSUS). What is required is that a tractor be actually, practically and commercially fit for such use. Suitability does not require that the tractor be principally used in agricultural pursuits, but there must be evidence of more than a casual, incidental, exceptional or possible use in this area. There must be evidence of substantial actual use in a recognized agricultural pursuit. U.S. v. F.W. Myers & Co. Inc., C.D. 4256, aff'd. C.A.D. 1097, 476 F.2d 1377 (1973). In making this determination, we evaluate all available evidence in the record, to include prior administrative rulings on similar tractors, brochures and advertising materials, and most significantly, the specific design features of the tractor models in issue. HQ 951434 and HQ 951506.

The tractors in issue are advertised for use in agricultural pursuits. Each has oversized, knobby rear tires and ground clearance from 380 to 425 mm. These features suggest adaptability to muddy or hilly terrain. They have front and rear balancing weights for better traction in pulling heavy implements. Also, they have power take off (pto) which transmits power from the tractors' engine through a flexible shaft for operating various types of farm machinery. The evidence of record indicates a suitability for agricultural use.

The three (3) models of combine-harvesters are machines that cut, thresh and clean wheat, corn, grains and sunflowers in a single operation. Oscillating knives cut the stalks and auger them to the threshing cylinder which rubs the grain or seeds out of the heads. The combined seed, wheat, chaff and straw fragments fall into the cleaning shoe which separates them and either bags the seed or grain or augers it to a holding tank or truck. The straw drops out the back of the machine into a baling attachment or is scattered on the ground.

Relevant ENs, at pp. 1211 and 1212, state that heading 8433 covers machines used in place of hand tools, for the mechanical performance of harvesting of agricultural crops, that is, reaping, gathering, picking, threshing, binding or bundling. Combine harvesters which successively reap, thresh, clean and discharge grain, are listed as an example of such machinery.

HOLDING:

Under the authority of GRI 1, the Ursus tractor models 912, 914, 1012, 1014, 1222, 1224 and 1614 are tractors of heading 8701. They are classifiable in subheading 8701.90.10, HTSUS, as tractors suitable for agricultural use. - 4 -

Under the authority of GRI 1, the Bizon combine harvesters 2020, Z 056 and Z 058 are harvesting or threshing machinery of heading 8433. They are classifiable in subheading 8433.51.00, HTSUS, as combine harvester-threshers.

Sincerely,

John Durant, Director
Commercial Rulings Division


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