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HQ 951043





MAY 15, 1992

CLA-2:CO:R:C:M 951043 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8701.90.10, HTSUS

District Director of Customs
40 South Gay Street
Baltimore, Maryland 21202

RE: Tractor Suitable for Agricultural Use; Utility Tractor; Subheading 8701.90.50; PRD 1303-91-100192

Dear Sir:

This is our decision on Application for Further Review of Protest No. 1303-91-100192, dated June 10, 1991, filed by Ford New Holland, Inc. The merchandise in issue is the FNH tractor models 3230, 4630, 4830, 6610 and 7810.

FACTS:

The model 3230 is a wheeled vehicle advertized as a field tractor for small-sized farms and as a chore tractor for larger farms. It is 137 inches long, 90.9 inches high, and has an 84.5 inch wheelbase with a 15 inch ground clearance. It has a turning radius approximately equal to its length. This model comes equipped with 2 or 4-wheel drive, an independent 3-cylinder, direct injection 32 hp, 2000 rpm diesel engine, and an 8 forward/ 2 reverse speed transmission. It has knobby rear tires suitable for soft earth and mud, a 3-point hitch, and weighted front end to counterbalance heavy implements operated by independent PTO generating 32 hp at 1800 rpm. Plows, tillers, mowers, and cultivators are among available implements.

The model 4630 is identical except that it has a 55 hp 2200 rpm engine, is 2 inches longer and 8 inches higher. Specifications for the model 4830 are not available, but from submitted brochures it is visually identical to the models 3230 and 4630 and is advertized with them as being ideal for vinyards, orchards, nurseries, landscaping, etc. The 4830 has a higher horsepower-to-weight ratio and generates more horsepower with a 4-cylinder, 256 cubic-inch displacement engine producing 62 PTO hp. It has a low center of gravity for working hilly terrain. - 2 -

The model 6610 is 141.6 inches long and 95.9 inches high, with an enclosed cab. It has an 87.5 inch wheelbase and a 10 ft turning radius. The 6610 has a 72 hp 2100 rpm diesel engine, with an 8 forward/4 reverse speed transmission, and independent PTO up to 1000 rpm. It has a flexible link end for fast and easy implement hookup.

Finally, the 2-wheel drive model 7810 is 157.6 inches long and 110 inches high. A closed cab is optional. It has a ground clearance of 18.1 inches, a turning radius of 72.9 inches, and a weighted front end for counterbalancing heavy implements mounted at the rear. In 4-wheel drive, this model has slightly larger dimensions. It has a 6 cylinder, 86 hp fuel injected diesel engine, standard 8 forward/2 reverse speed transmission, heavy duty 86 hp PTO at 2100 rpm, and flexible link end for easy equipment attachment. This model is advertized as provid[ing] high horsepower to run large sprayers or to pull larger tillage equipment in orchard applications. Available implements include mowers, spreaders, balers, harvesters, and automatic bale wagons.

The tractor models in issue were entered under the duty-free provision for tractors suitable for agricultural use, in subheading 8701.90.10, Harmonized Tariff Schedule of the United States (HTSUS). Protestant maintains that these tractor models are advertized, bought and sold as agricultural-type tractors. Warranty records have been submitted purporting to establish predominant end use in the United States in agricultural applications. Moreover, several of the models in issue are successors to previous models held in rulings under the Tariff Schedules of the United States (TSUS) to be suitable for agricultural use.

Your office, however, notes that several of the tractor models are general utility types and that the suitability for use claim is not fully documented. You therefore liquidated the entry under subheading 8701.90.50, HTSUS, a provision for other tractors. The rate of duty is 2.2 percent ad valorem.

ISSUE:

Whether the tractor models in issue, or any of them, 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 - 3 -
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 phrase "suitable for agricultural use" has been interpreted by the courts as requiring that a tractor be actually, practically and commercially fit for such use. Suitability does not require that the tractor be chiefly 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. United States v. F.W. Myers & Co., Inc. C.A.D. 1097, 476 F.2d 1377 (1973).

The FNH tractor models 4610 (predecessor to the model 4630) and 6610 were previously held to be suitable for agricultural use under the TSUS. See NY 800421, dated April 29, 1981. Assuming the dimensions of the successor models are the same, this ruling would substantiate protestant's claim for the tractor models 4630 and 6610.

We have accorded evidentiary value to owner warranty registration forms completed by actual purchasers which purport to establish actual use in agricultural pursuits by appropriate "end use" and "application" codes. See HQ 064308, dated Sept. 7, 1980. The summary of Nebraska Test information and the end use data obtained in the 1987 survey of FNH's customers do not bear on the suitability issue. The summary of owner warranty registration data submitted by protestant indicates that: 189 of 313 model 3230 tractors (60.38%) were used in farming, 98 of 118 model 6610 tractors (83.05%) were used in farming, and 1390 of 3241 model 7810 tractors (42.89%) were used in farming. This data was compiled by protestant on February 27, 1992 - well after the October 22, 1990 entry under protest. This data would support a claim for substantial actual use in agriculture, with respect to the models surveyed, if it can be established that the data relates to post-entry transactions and that it represents the total number of such tractor models sold.

Notwithstanding this, in administrative proceedings, particularly where there is no reason to believe the information, though incomplete, is flawed or otherwise unreliable, Customs has considerable latitude in evaluating the information in a light most favorable to the party seeking relief. This is especially so where the data correlates to other evidence in the record.

The evidence of record here includes NY 800421, brochures and advertizing materials, warranty registration data, and most significantly, the specific design features of the tractor models in issue. Evaluating this evidence as a whole, we - 4 -
conclude that the tractor models in issue have a substantial actual use in agriculture and are therefore tractors suitable for agricultural use.

HOLDING:

The FNH tractor models 3230, 4630, 4830, 6610 and 7810 have been shown to be suitable for agricultural use. They are provided for in heading 8701 and are classifiable in subheading 8701.90.10, HTSUS, free of duty.

The protest should be allowed. A copy of this decision should be attached to the Customs Form 19 and forwarded to the protestant as part of the notice of action on this protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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