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HQ 956372




March 14, 1995

CLA-2 CO:R:C:M 956372 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8701.90.50

Mr. Munford Page Hall, II
Dorsey & Whitney
1330 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20036

RE: HQ 955081 revoked; Commercial grounds keeping vehicle; ENs 84.33, 87.01; Chapter 87, Note 2; HQs 951506 and 557232; San Francisco Newspaper Printing Co. v. United States, U.S. v. F.W. Myers & Co., Inc., James S. Baker Imports Co. v. U.S. and U.S. v. Boker

Dear Mr. Hall:

This is in reference to the notice issued to you on March 10, 1994, by the District Director of Customs, Los Angeles, California, advising you that Protest 2704-93-102469 was denied based on protest decision HQ 955081 dated March 2, 1994, in which certain commercial grounds keeping vehicles were classified under subheading 8433.11.00, Harmonized Tariff Schedule of the United States (HTSUS), as mowers. We have reviewed this decision and determined that the classification of the articles indicated is incorrect.

HQ 955081 is a decision on a specific protest. A protest is designed to handle entries of merchandise which have been liquidated by Customs. A final determination of a protest, pursuant to Part 174, Customs Regulations (19 CFR Part 174), cannot be modified or revoked as it is applicable only to the merchandise which was the subject of the entry protested. Furthermore, Customs lost jurisdiction over the protested entries in HQ 955081 when notice of denial of the protest was received by the protestant. See, San Francisco Newspaper Printing Co. v. United States, 9 CIT 517, 620 F. Supp. 738 (1985).

However, Customs can modify or revoke a protest review decision to change the legal principals set forth in the protest decision. 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), 60 days after the date of issuance, Customs may propose a modification or revocation of a prior interpretive ruling or decision by publication and solicitation of comments, in the Customs Bulletin. This revocation will not affect the entries which were the subject of Protest 2704-93-102469, but will be applicable to any unliquidated entries or future importations of similar merchandise 60 days after publication of the notice of revocation in the Customs Bulletin.

FACTS:

The subject articles are described as four wheeled riding vehicles, with a driving seat, a 3 cylinder liquid-cooled rear-mounted diesel engine, power hydraulic steering, two forward and two reverse speeds, a front mounted power take off (PTO), independent right and left break drums, two pedal foot speed controls, front and rear turf tires, drawbar, and a standard two-post foldable rollover protective structure. The vehicles are identified as models CM 222, CM 224, CM 272, and CM 274. The first two digits refer to the net engine horsepower, and the third digit designates two or four-wheel drive.

After importation, various grounds keeping attachments are suspended from the cab's front carriers. Attachments include four different mower decks, a grass collection system for the side-discharge mowers, a 52 or 62 inch wide heavy-duty two stage snow thrower that allows for clearing snow from drives, walkways or parking lots, a 60 inch front blade for clearing snow or other light-duty blade work and a leaf and debris blower to clear sidewalks, parking lots, and golf greens of litter and leaves. The attachments are produced and sold separately from the vehicles and are not imported with the vehicles.

After a particular appliance is attached to the vehicle's front carrier, the vehicle pushes the attached appliance around a specified area to aid in the care and upkeep of commercial grounds, golf courses and the like.

The subheadings under consideration are as follows:

8433.11.00 harvesting or threshing machinery, including straw or fodder balers; grass or hay mowers; machines for cleaning, sorting or grading eggs, fruit or other agricultural produce, other than machinery of heading 8437; parts thereof: [m]owers for lawns, parks or sports grounds: [p]owered with the cutting device rotating in a horizontal plane.

8701.90.10 tractors (other than those of heading 8709): other: suitable for agricultural use.

8701.90.50 tractors (other than those of heading 8709): other.

ISSUE:

Are the subject commercial grounds keeping vehicles classifiable as grass or hay mowers, tractors suitable for agricultural use or other tractors?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with 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. GRI 6 provides 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, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be consulted. The Explanatory Notes (ENs), although not dispositive, or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of, the proper interpretation of HTSUS, See, T.D. 89-80, 54 Fed. Reg. 35127, 35128,(August 23, 1989). En 84.33, pg. 1211-1212, states, in pertinent part, that:

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

These include:

(1) Lawn mowers, whether worked by hand or motor driven. They may have a cutter bar like an agricultural mower, rotary blades which cut the grass against a fixed horizontal blade, or a rotating disc with knives on the outer edge...

This heading also covers lawn mowers, known as riding mowers, consisting of three or four wheeled basic machines fitted with a driving seat and having a permanently attached cutter, i.e., one which is removed only for repair or maintenance. Since their principal function is the mowing of lawns, they remain in this heading even if they have a coupling device for hauling or pushing light attachments such as a trailer.

While these vehicles are a four wheeled basic machine fitted with a driving seat, they do not have a permanently attached cutter. Instead the vehicles have various attachments, some of which are mowers, that are easily exchangeable by attaching each to the vehicle's front carriers. These attachments are produced and sold separately from the vehicles and are not imported with the machine. The mower attachments are in no way permanently attached or only removed for repair. Therefore, the vehicles do not meet the common understanding of a riding mower for tariff purposes and cannot be classified in heading 8433.

We note that Section XVI note 1 (l), states, in pertinent part, this section does not cover: articles of section XVII. Section XVI covers machinery and mechanical appliances, including mowers. As discussed above, the subject articles are not classifiable as mowers. Furthermore, they do not meet the description of any other heading is Section XVI. Section XVII covers vehicles, including tractors of heading 8701. We must now determine if the subject articles are described by the tariff term "tractor".

Note 2 to chapter 87, HTSUS, states that:

For the purposes of this chapter, "tractors" means vehicles constructed essentially for hauling or pushing another vehicle, appliance or load, whether or not they contain subsidiary provision for the transport, in connection with the main use of the tractor, of tools, seeds, fertilizers or other goods.

The term "hauling" is not defined in the HTSUS or the ENs. Terms not defined in the HTSUS or in the EN's are construed in accordance with their common and commercial meaning. Nippon Kogasku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). The term "hauling" is defined as "1. To pull or drag forcibly. 2. To transport as with a truck or cart." Webster's II New Riverside University Dictionary, (1984).

Customs is of the opinion that the grounds keeping vehicle meets the definition of tractor because it hauls various attachments around the particular grounds area requiring attention. It is not, however, suitable for agricultural use.

According to HRL 951506 dated May 29, 1992, 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. U.S. v. F.W. Myers & Co., Inc., C.A.D. 1097, 476 F.2d 1377 (1973). HRL 557232 dated September 28, 1993, states that in James S. Baker Imports Co. v. U.S., 61 Cust. Ct. 305, C.D. 3619 (1968), it was stated that:
in [U.S.] v. Baker, 6 Ct. Cust. Appls. 243, T.D. 35472, the Court of Customs Appeals constructed the word "agriculture" to include only that which provides the substantial requirements of life (food) and comfort (raiment), and not the purely pleasurable pursuits. It held that "agriculture" must lead to the production of necessities and not that which is essentially pleasurable or ornamental.

The vehicles' uses, grooming and caring for lawns, clearing snow and cleaning walkways, are not considered agricultural pursuits. These uses do not provide for the substantial requirements of life and comfort but rather lead to the production of that which is essentially pleasurable or ornamental. Therefore, the vehicles are not classifiable as tractors suitable for agricultural use.

Subheading 8701.90.50, HTSUS, provides for other tractors. As the subject vehicles meet the tariff definition of tractors but are not suitable for agricultural use, they are classifiable as other tractors.

HOLDING:

Models CM 222, CM 224, CM 272, and CM 274 are classifiable under subheading 8701.90.50, HTSUS, as tractors (other than those of heading 8709): other, with a column one duty rate of 2.2 % ad valorem. HQ 955081 is revoked. 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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