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HQ 956587




OCTOBER 7, 1994

CLA-2:CO:R:C:M 956587 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8433.19.00

District Director of Customs
1 East Bay Street, Rm. 104
Savannah, GA 31401

RE: PRD 1703-94-100059; Rotary Mower, Finishing Mower, Unpowered Mower for Lawns, Parks or Sports Grounds; Other Mowers, Subheading 8433.20.00; Principal Use, Additional U.S. Rule 1(a); HQ 952244, HQ 956280

Dear District Director:

This is our decision on Protest No. 1703-94-100059, filed against your action in classifying certain mower components in kit form from Italy. The entries under protest were liquidated on February 25 and May 6, 1994, and this protest timely filed on May 26, 1994.

FACTS:

The merchandise in issue is certain models of the 20 series Cyclone rotary mower, specifically the C24, C25 and C26, and the models C90 and C110. Some or all of these mowers may be imported unfinished and unassembled, in so-called "kit" form. Also under protest is the Cyclone Flex model, which in this case consists of a frame and power take-off (pto) imported together but unassembled. The incomplete mowers are completed after importation with components of U.S. origin.

The mowers in issue were entered under the provision for other movers, in heading 8433. The entries were liquidated under another subheading of heading 8433 for mowers for lawns, parks or sports grounds. Protestant maintains that this provision is limited to mowers typically used for residential lawns and light commercial mowing applications. Because the mowers in issue here are unpowered and tractor-drawn, protestant believes they are unsuitable for these uses. - 2 -

The provisions under consideration are as follows:

8433 [G]rass or hay mowers; parts thereof:

Mowers for lawns, parks or sports grounds:

8433.11.00 Powered, with the cutting device rotating in a horizontal plane
...4 percent

8433.19.00 Other...4 percent

8433.20.00 Other mowers, including cutter bars for tractor mounting...Free

ISSUE:

Whether the machines in issue are mowers for lawns, parks or sports grounds.

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.

In comparing the provisions in competition here, it is apparent that the liquidated provision, if it applies, is more specific than the residual provision for "other" mowers. In this regard, the provision for mowers for lawns, parks or sports grounds is a use provision because though the word "use" does not appear in the text, the test of use must be applied in order to determine whether a particular mower is included within the provision. The standard here is principal use, that is, the use which exceeds any other single use of the goods.

Protestant concedes that the instant mowers can be and are used in some parks and sports grounds, but contends this is not their principal use. So-called agricultural uses, for example, for mowing on sod and turf farms, and other uses are alleged. See memorandum in support of protest, at p. 5. On the issue of use, catalogs and advertisements are not dispositive in determining the correct classification of goods, but they are probative of the way an importer views the merchandise and the market he is trying to reach. THK America, Inc. v. United States, Slip Op. 93-207, decided November 1, 1993. Submitted literature describes these machines as "ideal for turf grass - 3 -
growers, golf courses, parks and large recreational areas, featuring sizes (cutting widths) of 12, 15, 17, 22, 24 and 26 ft." making these machines "the right choice for your large acreage cutting needs." On the issue of argicultural use, we note that ground covered with grass on sod or turf farms qualifies as "lawn" so that mowers used on such farms are lawn mowers. HQ 952244, dated October 5, 1992, and HQ 956280, dated May 25, 1994.

The evidence of record compels a conclusion that the C series mowers in issue belong to a class or kind of mower principally used for lawns, parks or sports grounds. It has been determined by the local Customs officers that those of the mowers under protest that are imported incomplete and unassembled have the essential character of finished or complete mowers so that any issue of essential character is not raised on protest. Because these mowers are powered by the pto of a tractor, rather than being self-powered by engines integral to the mower, they are classifiable in subheading 8433.19.00 rather than subheading 8433.11.00. HQ 956280.

Regarding the Cyclone Flex model, the literature depicts a wheeled steel mounting frame to which three individual mowers are mounted in a gang mower configuration. The gang mower operates from power supplied by the pulling tractor's engine through the pto. There is no argument made or evidence that the frame and pto imported together, unassembled, comprise an unfinished mower of heading 8433.

The steel frame and pto are classifiable separately. The pto is a transmission shaft of heading 8483 and is classifiable in the provision for other transmission shafts and cranks, in subheading 8483.10.50, HTSUS. The steel frame does not qualify as a part for tariff purposes as the individual mowers mounted on it are fully functional if operated separately; rather, it is an accessory and is provided for in heading 7326 as an article of iron or steel. It is classifiable in subheading 7326.90.90, HTSUS, as an other article of iron or steel.

HOLDING:

The C series mowers, whether imported complete or incomplete and unassembled, are provided for in heading 8433. They are to be reclassified under subheading 8433.19.00, as indicated. The steel mounting frame and the pto are to be reclassified in subheadings 7326.90.90 and 8483.10.50, respectively.

Because the rate of duty under subheadings 8433.19.00 and 8483.10.50 is the same as the liquidated rate, and the rate of duty under subheading 7326.90.90 is more than the liquidated rate, the protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, - 4 -

1993, Subject: Revised Protest Directive, you should mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the 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, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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