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HQ 957269




March 3, 1995

CLA-2 CO:R:C:M 957269 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8422.40.90; 9817.00.50

District Director
U.S. Customs Service
111 W. Huron Street, Room 603
Buffalo, New York 14202-2378

RE: Protest 0901-94-100087; Tanco Autowrap machine; other packing or wrapping machinery; EN 84.22; 8433.30.00; other haymaking machinery; Note 2, Chapter 84; agricultural or horticultural machinery, equipment and implements; HRL 083930; three part test; 19 CFR 10.131-10.139; NY 889374 and NY 893045

Dear District Director:

This is in regards to Protest 0901-94-100087 which pertains to the tariff classification of the Tanco Autowrap machine under the Harmonized Tariff Schedule of the United States (HTSUS). Product information was submitted for our examination.

FACTS:

The article under consideration is the Tanco Autowrap machine which is used by farmers or contractors to automatically wrap round silage bales with plastic film. The wrapping of the hay facilitates the fermentation process and prevents spontaneous combustion during storage. The Tanco Autowrap machine is mounted on a chassis which may be towed behind a tractor or attached to the tractor's linkage. A round silage bale is loaded onto the machine's turntable by means of a self-contained hydraulic loading arm or via a front loader. Horizontal and vertical rollers ensure irregularly shaped bales stay safely on the turntable, which is supported on four polyurethane wheels for even distribution of bale weight. An arm dispenses plastic film while the turntable rotates in order to wrap the bale. An automatic film pretension unit applies 70% strength to the film to maximize the number of bales wrapped per roll of film. The machine may be powered from the tractor's hydraulic system or from a separate gas powered hydraulic power pack.

The entries of the Tanco Autowrap machines were liquidated on November 12, 1993, under subheading 8422.40.90, HTSUS, as other packing or wrapping machinery. This classification was based on New York (NY) Ruling 889374 dated September 2, 1993, and NY 893045 dated December 23, 1993, which classified the Tanco Autowrap machine as other packing or wrapping machinery under subheading 8422.40.90, HTSUS. In a protest timely filed on January 20, 1994, the protestant contends that the Tanco Autowrap machine is classified under subheading 8433.30.00, HTSUS, as other haymaking machinery.

The subheadings at issue are as follows:

8422.40.90 Dishwashing machines; machinery for cleaning or drying bottles or other containers; machinery for filling, closing, sealing, capsuling or labeling bottles, cans, boxes, bags or other containers; other packing or wrapping machinery; machinery for aerating beverages; parts thereof...Other packing or wrapping machinery...Other....

8433.30.00 Harvesting or threshing machinery, including straw or fodder balers; grass or hay movers; machines for cleaning, sorting or grading eggs, fruit or other agricultural produce, other than machinery of heading 8437; parts thereof...Other haymaking machinery.

9817.00.50 Machinery, equipment and implements to be used for agricultural or horticultural purposes.

ISSUE:

Is the Tanco Autowrap machine classified under subheading 8422.40.90, HTSUS, as other packing or wrapping machinery, or under subheading 8433.30.00, HTSUS, as other haymaking machinery, and/or under subheading 9817.00.50, HTSUS, as machinery, equipment and implements to be used for agricultural or horticultural purposes?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, 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...."

The protestant contends that the Tanco Autowrap machine is classified under subheading 8433.30.00, HTSUS, as other haymaking machinery. In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, although not dispositive, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 84.33 (pgs. 1211-1213), 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 movers, and straw or fodder balers are also included in this heading....

(A) HARVESTING OR THRESHING MACHINERY,
INCLUDING STRAW OR FODDER BALERS;
GRASS OR HAY MOWERS

These include:...

(2) Mowers (including motormowers) for cutting hay, etc. They usually consist of a horizontal cutter bar and sections which cut by the oscillating action of teeth between the fingers of the cutter bar, or they may consist of rotating discs or drums with knives on the outer edge...

(4) Hay rakes, usually consisting of a wheeled row of semi-circular teeth, which can be lifted automatically...

(7) Pick-up balers and bale rollers, for picking up and baling hay or straw left on the field.

Pursuant to the terms of heading 8433, HTSUS, the types of machines classifiable therein include machines which harvest, thresh or mow. This is further evidenced by the exemplars listed in EN 84.33. The Tanco Autowrap does not harvest, thresh or mow hay. It wraps previously baled hay for storage which improves the quality of the hay. Therefore, we are of the opinion that the Tanco Autowrap it not classifiable under subheading 8433.30.00, HTSUS, as other haymaking machinery.

EN 84.22 (pgs. 1184-1186), states that heading 8422, HTSUS, covers:

...machines of different types designed...for packing goods for sale, transport or storage. These include:...

(5) Wrapping or cartoning machines....

Additionally, EN 84.22 (pg. 1185) states that:

This heading excludes:...

(b) Straw or fodder balers (heading 84.33)...(emphasis in original).

As stated previously, the Tanco Autowrap machine is not a straw or fodder baler; it does not bale hay or straw. The Tanco Autowrap machine wraps plastic around previously baled hay or straw. Therefore, the Tanco Autowrap machine is not excluded from heading 8422, HTSUS. We are of the opinion that the Tanco Autowrap machine is classified under subheading 8422.40.90, HTSUS, as other packing or wrapping machinery. EN 84.22 states that this heading encompasses machines which pack goods for sale, transport or storage. The information presented indicates that the Tanco Autowrap wraps baled hay in plastic as part of a storage process. Hay fermentation is a result of the wrapping function. The Tanco Autowrap machine does not directly improve the quality of the hay but, by performing a wrapping operation, creates the conditions needed for fermentation to occur. The Tanco Autowrap machine's sole function is to wrap the baled hay. Therefore, it is classified under subheading 8422.40.90, HTSUS, as other packing or wrapping machinery.

Furthermore, we note that Note 2, Chapter 84, HTSUS, states that:

Subject to the operation of note 3 to section XVI, a machine or appliance which answers to a description in one or more of the headings 8401 to 8424 and at the same time to a description in one or more of the headings 8425 to 8480 is to be classified under the appropriate heading of the former group and not the latter.

Therefore, even if we determined that the Tanco Autowrap machine was classifiable in both heading 8422 and 8433, pursuant to Note 2, Chapter 84, HTSUS, it would be properly classified under heading 8422, HTSUS.

Chapters 98 and 99, HTSUS, provide an additional U.S. classification that grants special treatment to qualifying articles. Subheading 9817.50.00, HTSUS, provides for "Machinery, equipment and implements to be used for agricultural or horticultural purposes." This tariff provision is an actual use provision. See, Headquarters Ruling Letter (HRL) 083930 dated May 19, 1989. To fall within this special classification the following three part test must be met:

(1) The article in question must not be excluded from the heading under Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, HTSUS.

(2) The terms of the headings must be met in accordance with General Rule of Interpretation (GRI) 1, HTSUS, which provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

(3) The article must comply with the actual use provision requirements of sections 10.131-10.139, Customs Regulations (19 CFR 10.131-10.139).

The first part of the test is that the articles not be excluded from classification by Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, HTSUS. As previously stated the Tanco Autowrap machines are classified under subheading 8422.40.90, HTSUS, as other packing or wrapping machinery. This subheading is not excluded from classification under heading 9817, HTSUS, by operation of Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, HTSUS.

The second part of the test calls for the Tanco Autowrap machines to be included within the terms of subheading 9817.00.50, HTSUS, as required by GRI 1, HTSUS. The must be "machinery", "equipment" or "implements" used for "agricultural or horticultural purposes." Webster's II New Riverside University Dictionary (1988), defines machinery, equipment, implement and agricultural as follows:

Machinery: machines or machine parts in general...the working parts of a machine...a system of related elements that operates in a definable way....

Equipment: the act of equipping or state of being equipped...something with which one is equipped....

Implement: a tool, utensil, or instrument for doing a task...an article used to outfit or equip....

Agriculture: the science, art, and business of cultivating the soil, producing crops, and raising livestock...farming.

Based on the submitted information, the Tanco Autowrap machines meet the definition of machinery, equipment and implements to be used for agricultural purposes. The Tanco Autowrap is a machine which is used in farming to wrap baled hay in plastic for storage. Additionally, this wrapping also facilitates the fermentation process. This is an acceptable agricultural use. Therefore, the Tanco Autowrap machines meet the requirements of the second part of the test.

The third part of the test is that the requirements of 19 CFR 10.131-10.139, be met. If these requirements are satisfied, the third part of the test will be met. For the protestant's information, we note that a blanket use certificate is available for numerous entries pursuant to 19 CFR 10.138, which states, in pertinent part:

A blanket certificate covering all purchases of a given type of merchandise from a particular importer during a given period, or all such purchases with specified exceptions, may be accepted for this purpose, provided the importer shall furnish a statement showing in detail, in such manner as to be readily identified with each entry, the merchandise which he sold to such manufacturer or end-user during such period.

The protestant contends that other importers are entering bale wrapping machines, similar to the Tanco Autowrap machine, under subheading 8433.30.00, HTSUS, as other haymaking machinery. We have not been able to verify this information. However, to maintain uniformity for the tariff classification of bale wrappers, a message has been sent to all Customs personnel responsible for this type of commodity. The message states that bale wrappers, similar to the product in this situation, are properly classified under subheading 8422.40.90, HTSUS, as other packing or wrapping machinery.

HOLDING:

This protest should be DENIED pursuant to the tariff classification claim. The Tanco Autowrap machines are classified under subheading 8422.40.90, HTSUS, as other packing or wrapping machinery. However, if the actual use requirements of section 10.131-10.139, Customs Regulations (19 CFR 10.131-10.139), are satisfied, the Tanco Autowrap machine is eligible for duty free treatment under subheading 9817.50.00, HTSUS.

In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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