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HQ 957033




MARCH 20, 1995

CLA-2:CO:R:C:M 957033 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8701.90.50

Mr. Gary Gilstorf
AGCO Manufacturing Group
627 South Cottage
Independence, MO 64050-4339

RE: Tractors Other Than Track-Laying; Suitability for Agricultural Use, U.S. v. F.W. Myers & Co., Inc., Subheading 8701.90.10; Other Tractors; HQ 951434 Modified

Dear Mr. Gilstorf:

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of the proposed modification of HQ 951434 was published on February 15, 1995, in the Customs Bulletin, Volume 29, Number 7. As successor to Massey-Ferguson Industrial Machinery, Inc., AGCO Manufacturing Group was notified of this fact by letter dated March 2, 1995.

In HQ 951434, issued to Massey-Ferguson Industrial Machinery, Inc., on June 23, 1992, we held that certain MF tractor models were classifiable free of duty in subheading 8701.90.10, Harmonized Tariff Schedule of the United States (HTSUS), as tractors suitable for agricultural use.

In a later ruling, HQ 955502, issued to Massey-Ferguson on March 31, 1994, we held that the MF vehicle models 750, 860 and 965 were excavating machines classifiable in subheading 8429.59.10, HTSUS. The models 750 and 860 were said to directly replace the MF models 50H and 50HX, which were among the models addressed in HQ 951434. We indicated that HQ 951434 would be modified accordingly. This modification does not affect the status of the MF 50H and 50HX as "tractors." The issue is the sufficiency of evidence of their suitability for agricultural use.

FACTS:

HQ 951434, dated June 23, 1992, addressed the tariff status of a certain line of Massey-Ferguson wheeled tractor. We held that the MF 30E, 40E, 50E, 50EX, 50H, and 50HX were classifiable in subheading 8701.90.10, Harmonized Tariff Schedule of the United States (HTSUS), as tractors suitable for agricultural use. We held the MF 60HX to be classifiable in subheading 8701.90.50, HTSUS, a provision for other tractors, because of a lack of evidence of suitability for agricultural use.

The provisions under consideration are as follows:

8701 Tractors (other than tractors of heading (8709):

8701.90 Other:

8701.90.10 Suitable for agricultural use...Free

8701.90.50 Other...1.8 percent

ISSUE:

Whether the MF models 50H and 50HX are tractors 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. GRI 6 states in part that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, by appropriate substitution of terms, to GRIs 1 through 5, on the understanding that only subheadings at the same level are comparable. For the purposes of Rule 6, the relative section, chapter and subchapter notes also apply, unless the context requires otherwise.

To be "suitable for agricultural use" it must be established that a tractor is actually, practically and commercially fit for such use. Evidence of sole use or even principal use is not required. However, there must be evidence of substantial actual use in a recognized agricultural pursuit. U.S. v. F.W. Myers & Co., Inc., C.D. 4256, C.A.D. 1097, 476 F. 2d 1377 (1973).

In previous rulings on earlier generations of Massey- Ferguson tractors, the models either had power take-off and hydraulic hitch or were imported with attachments and implements dedicated to agricultural applications. In addition, sales statistics and end user statements supported suitability for agricultural use. However, in HQ 951434 it was stated, among other things, that the MF 50H, MF 50HX and MF 60HX are not PTO tractors, but can accommodate an optional PTO. As you know, power take-off is a feature that permits a tractor to utilize a variety of attachments and implements, many of which relate directly to agricultural pursuits. In addition, a more thorough review of the end user survey submitted in connection with the ruling request that resulted in HQ 951434 indicates that of the 181 reported tractor sales during the period in question only 5 MF 50Hs and 3 MF 50HXs were sold to agricultural end users. For these reasons, we conclude that the evidence of record does not support a finding that the MF 50H and the MF 50HX are suitable for agricultural use.

HOLDING:

Under the authority of GRI 1, the Massey-Ferguson (MF) tractor models 50H and 50HX are provided for in heading 8701. They are classifiable in subheading 8701.90.50, HTSUS, as other tractors. The MF 60HX remains classifiable in subheading 8701.90.50 as indicated in HQ 951434.

HQ 951434, dated June 23, 1992, is hereby modified as indicated. In accordance with 19 U.S.C. 1625(c)(1) this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director
Commercial Rulings Division


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