CLA-2 RR:CR:GC 965406 JAS
Port Director of Customs
40 South Gay Street
Baltimore, MD 21202
RE: Protest 1303-01-100133; Tractive Base for Log Forwarders
Dear Port Director:
This is our decision on Protest 1303-01-100133, filed on behalf of Ponsse USA, Inc., against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of the tractive base or fore section for incorporation into log forwarders. The entry under protest was liquidated on March 30, 2001, and this protest timely filed on June 27, 2001.
FACTS:
The merchandise at issue is a tractive base or fore section for motor vehicles called log forwarders. It is a 2-wheeled propelling base with enclosed driver’s cab, powered by a Perkins 1006-60T 159 hp engine. It includes a hydraulic pump which powers a variety of tools, as discussed below. After importation, this tractive base is coupled by means of a pivot joint to a wheeled bogie wagon to form the Bison F15 Log Forwarder. At the front of the bogie wagon is mounted a grapple crane powered by the hydraulic pump in the tractive base. When completed, the log forwarder is capable of operating in all-wheel drive, by means of a front tractor axle with planetary gear and differential lock, and a rear bogie wagon axle with the motive force provided by a drive shaft which extends the length of the wagon and connects to a gear box in the tractor. The rear wheel drive feature can be disengaged by a switch in the cab of the tractor, in which case the log forwarder operates as a front wheel vehicle. Traditionally, utilizing the grapple
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crane for loading and unloading purposes, log forwarders such as the F15 transport cut and de-limbed timber from the forest floor to a road or staging area where a larger timber hauling truck transports it to the mill or other location for further processing.
The propelling base was entered under a provision of heading 8701, HTSUS, as a tractor. The entry was liquidated, however, under a provision in heading 8708, HTSUS, as other parts and accessories for the motor vehicles of headings 8701 to 8705. Alternatively, counsel for the protestant makes claims under heading 8436, HTSUS, as other agricultural, horticultural or forestry machinery, or as other parts of such machinery.
In a Memorandum of Facts and Law, including photographs and specifications, which accompanied the Protest, Customs Form 19, counsel makes the following arguments in support of the heading 8701, HTSUS, classification: (1) the tractive or propelling base is a “tractor” as defined in Chapter 87, Note, 2, HTSUS, i.e., motive force is applied to the front wheels of the tract[or], thus forcing it to haul the bogie wagon as required by the legal note; (2) the tractive base conforms in all material respects to the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) for heading 8701; (3) HQ 961261, dated February 3, 1998, classified substantially similar tractive or propelling bases in heading 8701, HTSUS; (4) tractive bases substantially similar to the ones at issue here were recently classified in heading 8701 pursuant to an Order of Stipulated Judgement on Agreed Facts; and finally, (5) the transport of both the logging crane and the cut timber over short distances qualifies the tractive base as a “forest” machine of heading 8436 or as part of such a machine.
The HTSUS provisions under consideration are as follows:
Other agricultural, horticultural, forestry…machinery; parts thereof:
Other machinery
Parts:
8436.99.00 Other
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* * *
Tractors (other than tractors of heading 8709):
Other
Suitable for agricultural use
* * *
8708 Parts and accessories of the motor vehicles of headings 8701 to 8705:
Other
8708.99.80 Other
ISSUE:
Whether the tractive or propelling bases are tractors for tariff purposes.
LAW AND ANALYSIS:
Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified 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.
Chapter 87, Note 1, HTSUS, defines “tractors” as 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.
Addressing counsel’s first three arguments, HQ 961621, on which he relies, was revoked by HQ 965029, dated September 5, 2001. The latter classified certain tractive or propelling bases in subheading 8708.99.80, HTSUS, as other parts of the motor vehicles of headings 8701 to 8705. The principles of HQ 965029 are incorporated by reference in this decision. Like the tractive or propelling bases in that ruling, because the tractive bases at issue here admittedly provide mechanical propulsion to the wheels of the bogie wagon, they cannot be said to constitute vehicles constructed “essentially” for hauling or pushing, the former term connoting, in our opinion, a steady and forceful heavy pulling or dragging. These tractive bases do not meet the Chapter 87, Note 2 definition for “tractors.” Concerning counsel’s fourth argument, Stipulated Judgements
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are binding on the Government only as to the merchandise and entries before the Court, and do not serve as precedent with respect to subsequent entries.
Concerning counsel’s final argument concerning heading 8436, HTSUS, we note the statements in HQ 965029 that heading 8436, HTSUS, encompasses tree-felling machines with hydraulic shears and saws, and stump removers which break up stumps by means of knived discs. As imported, however, the tractive base at issue performs neither of these functions or any function described in heading 8436.
Goods of heading 8708 must be identifiable as being suitable for use solely or principally with the motor vehicles of headings 8701 to 8705, and they must not be excluded by the legal notes to Section XVII. Also, the good must not be more specifically described by another provision of the HTSUS. As the available evidence indicates the tractive or propelling base at issue here is a part principally used with log forwarders, and Customs consistently classifies log forwarders as motor vehicles for the transport of goods, in heading 8704, HTSUS, the appropriate classification for the tractive or propelling base is in subheading 8708.99.80, HTSUS. See HQ 965029 and NY F80926, dated December 27, 1999.
HOLDING:
Under the authority of GRI 1, the tractive or propelling base or fore section for the Bison F15 Log Forwarder is provided for in heading 8708. It is classifiable in subheading 8708.99.80, HTSUS.
The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division