CLA-2 CO:R:C:M 951506 DWS
District Director
U.S. Customs Service
101 East Main Street
Norfolk, VA 23510
RE: Protest No. 1401-92-100031; Tractors; Suitable For
Agricultural Use; U.S. v. F.W. Myers & Co., Inc.;
8701.90.50
Dear Sir:
This is our response on Application for Further Review of
Protest No. 1401-92-100031, dated February 24, 1992, concerning
the classification of tractors under the Harmonized Tariff
Schedule of the United States (HTSUS).
FACTS:
The merchandise consists of two models of compact tractors.
Model H5103 is 86.2 inches long, 41.7 inches wide, and 70.3
inches high. It has 8 forward and 4 reverse speeds as well as 4
wheel steering. The tractor has a 13 horsepower, single cylinder
air cooled engine, and both front and rear hydraulic lift power
take offs (PTOs). The PTOs provide the power for the various
attachments which are used with the tractors. It also has knobby
turf tires suitable for soft mud and earth and a 3-point hitch
suitable for connection with the various attachments.
Model H6522 is similar in size to model H5103. It has 9
forward and 3 reverse speeds, and a power shift transmission. It
also has a 22 horsepower, 3 cylinder engine, as well as rear and
mid independent PTOs. The tractor has knobby tires and a 3-
point hitch.
Attachments available for both models of tractors include a
plow, a cultivator, a disc harrow, a mower, a dozer blade, a snow
blower, a sweeper, a roto-tiller, a back hoe, a front loader, a
manure spreader, a seeder, an aerator, and a sprayer.
ISSUE:
Whether, for classification purposes, the tractors are
suitable for agricultural use under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.
The merchandise was entered under subheading 8701.90.10,
HTSUS, which provides for: "[t]ractors: [o]ther: [s]uitable for
agricultural use." However, the merchandise was liquidated under
subheading 8701.90.50, HTSUS, which provides for: "[t]ractors:
[o]ther: [o]ther."
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. U.S. v. F.W. Myers & Co., Inc., C.A.D.
1097, 476 F.2d 1377 (1973).
The importer has supplied us with letters from several
dealers who sell the tractors on a regular basis. In all of the
letters, the dealers stated that the tractors and the various
agricultural attachments were generally sold to farmers, with
small plots of land, for agricultural purposes.
Based upon these statements, the literature submitted by the
importer, and the specific design features of the subject
tractors and their attachments, it is our position that the
merchandise has a substantial actual use in and is actually,
practically, and commercially fit for agricultural use.
HOLDING:
Tractor models H5103 and H6522 are classifiable under
subheading 8701.90.10, HTSUS.
The protest should be granted. A copy of this decision
should be attached to the Customs Form 19 and provided to the
protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director