CLA-2 CO:R:C:M 950672 LTO
District Director
U.S. Customs Service
511 N.W. Broadway Federal Bldg.
Portland, Oregon 97209
RE: Protest No. 0101-91-10097; Double Ridger; Trailed
Harvester; "agricultural"/"harvesting" machinery; EN 84.28; EN
84.30; 8432; EN 84.32; HQ 069816; NY 800556; 8433; EN 84.33;
McGraw-Hill Encyclopedia of Science & Technology ["peat"]
Dear Sir:
This is our response regarding Protest No. 0101-91-10097,
dated September 18, 1991, which concerns the tariff
classification of double ridgers and trailed harvesters, used to
harvest peat, under the Harmonized Tariff Schedule of the United
States (HTSUS).
FACTS:
The double ridger and the trailed harvester are used in the
harvesting of peat. Both articles are attached to a tractor.
The double ridger consists of outrigger appendages with half-
cylindrical shapes attached. Its function is to clean, scrape
and plow peat (soil) and then lay it in long ridges. The
protestant states that the double ridger is similar to a snow
plow with a "V" shape.
The trailed harvester gathers the ridges of peat and conveys
them to a trailed vehicle. It consists of an endless screen belt
made up of steel rods that passes over the ridges of peat. The
protestant states that it is nothing more than a conveyor, which,
when attached to a tractor, picks up the peat and places it into
a trailed vehicle. The protestant further states that the
trailed harvester is similar to a potato harvester.
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The double ridger was entered under subheading 8432.80.00,
HTSUS, which describes other agricultural, horticultural or
forestry machinery. The trailed harvester was entered under
subheading 8433.59.00, HTSUS, which describes other harvesting
machinery. Both the double ridger and the trailed harvester were
held to be classifiable under subheading 8430.69.00, HTSUS, which
provides for "[o]ther moving, grading, leveling, scraping,
excavating, tamping, compacting, extracting or boring machinery,
for earth, minerals or ores . . . [o]ther machinery, not self-
propelled . . . [o]ther." The corresponding rate of duty for
articles of this subheading is 2.5% ad valorem.
ISSUE:
Whether the double ridger and the trailed harvester are
"agricultural" or "harvesting" machinery under the HTSUS.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states in pertinent part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes . . . ."
1. Double Ridger
The protestant contends that the double ridger is
classifiable under Heading 8432, HTSUS--specifically under
subheading 8432.80.00, HTSUS, or, in the alternative, subheading
8432.10.00, HTSUS. Heading 8432, HTSUS, provides for
"[a]gricultural, horticultural or forestry machinery for soil
preparation or cultivation; lawn or sports ground rollers; parts
thereof." Subheading 8432.80.00, HTSUS, describes other
agricultural, horticultural or forestry machinery. Subheading
8432.10.00, HTSUS, describes plows for soil preparation or
cultivation.
The double ridger was held to be classifiable under
subheading 8430.69.00, HTSUS, which provides for "[o]ther moving,
grading, leveling, scraping, excavating, tamping, compacting,
extracting or boring machinery, for earth, minerals or ores . . .
[o]ther machinery, not self-propelled . . . [o]ther." The
Harmonized Commodity Description and Coding System Explanatory
Note (EN) for Heading 8430, HTSUS, pg. 1203, states that "[t]his
heading covers machinery, other than the self-propelled machines
of heading 84.29 and agricultural, horticultural or forestry
machinery (heading 84.32), for 'attacking' the earth's crust
. . . or for preparing or compacting the terrain [emphasis in
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original]." Thus, if the article in question is classifiable
under Heading 8432, HTSUS, it is excluded from Heading 8430,
HTSUS.
Heading 8432, HTSUS, describes agricultural machinery for
soil preparation or cultivation. It is clear, however, that the
harvesting of peat moss is not an agricultural or horticultural
pursuit, nor is equipment used to collect peat harvesting
machinery. In the United States, the principal use of peat is
for soil improvement. McGraw-Hill Encyclopedia of Science &
Technology, 6th Edition, Volume 13, pg. 173 (1987). In HQ
069816, dated March 14, 1983, this office stated as follows:
The harvesting of peat moss is not directly
related to the production of food or clothing. In
this sense, therefore, peat harvesting is not an
agricultural pursuit. Neither is peat grown as a
horticultural product. Peat is the dead or
decaying material from various plants and trees
and is used as a soil conditioner or as a fuel.
Therefore, equipment used to collect peat are
neither harvesting machinery nor agricultural or
horticultural implements described in 666.00,
TSUS.
See also NY 800556, dated May 11, 1981.
Moreover, EN 84.32, pgs. 1208-1209, states that the
machinery of this heading is used for one or more of the
following classes of agricultural, horticultural or forestry
work:
(I) Preparing the soil for cultivation (clearing,
breaking, tilling, ploughing, loosening,
etc.).
(II) Spreading or distributing fertilisers,
including manure, or other products to improve
the soil.
(III) Planting or sowing.
(IV) The working or maintenance of the soil during
the growing period (hoeing, weeding, cleaning,
etc.).
The double ridger does not perform any of the classes of work
specified above.
Further guidance can be found under the HTSUS, where self-
propelled peat excavators are provided for under Heading 8430,
HTSUS, which describes "[o]ther moving, grading, leveling,
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scraping, excavating, tamping, compacting, extracting or boring
machinery, for earth, minerals or ores . . .," rather than under
the provisions for agricultural or harvesting machinery. For all
of the foregoing reasons, the double ridger is not classifiable
under Heading 8432, HTSUS.
The double ridger--which cleans, scrapes and plows peat,
before laying it in long ridges--was properly classified under
subheading 8430.69.00, HTSUS, which describes other earth
excavating, scraping or levelling machinery, not self-propelled.
2. Trailed Harvester
The protestant contends that the trailed harvester is
classifiable under subheading 8433.59.00, HTSUS, which provides
for [h]arvesting or threshing machinery, including straw or
fodder balers . . . [o]ther harvesting machinery; threshing
machinery . . . [o]ther." The protestant claims that there is no
indication that "harvesting or threshing machinery" must be
agricultural in scope. However, EN 84.33, pg. 1211, states that
"[t]his heading covers machines used in place of hand tools, for
the mechanical performance of the following operations:
(A) Harvesting of agricultural crops (e.g.,
reaping, croplifting, gathering, picking,
threshing, binding or bundling). Hay or
grass mowers, and straw or fodder balers are
also included in this heading.
(B) Machines for cleaning, sorting or grading
eggs, fruit or other agricultural produce
[emphasis added]."
Because peat is not an agricultural crop, the trailed harvester
does not meet these descriptions. Thus, it cannot be classified
under Heading 8433, HTSUS.
The trailed harvester was found to be classifiable under the
same provision as the double ridger--subheading 8430.69.00,
HTSUS. As mentioned above, EN 84.30, pg. 1203, states that this
heading covers machinery for "attacking" the earth's crust or for
preparing or compacting the terrain. The trailed harvester
gathers the ridges of peat laid down by the double ridger, and
then conveys them to a trailed vehicle.
It is our opinion that the harvester does not "attack" the
earth's crust. It is not used for cutting and breaking down
rock, earth, or coal, nor is it for earth excavation, digging, or
drilling. Moreover, the harvester is not for preparing or
compacting the terrain--it merely picks up the peat that has been
laid in rows by the double ridger, and places it, by way of a
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conveyor, into a trailed vehicle. Thus, the article in question
is not described by Heading 8430, HTSUS.
Heading 8428, HTSUS, provides for "[o]ther lifting,
handling, loading or unloading machinery (for example, lifts,
escalators, conveyors, teleferics)." EN 84.28(III)(C), pg. 1199,
states that this heading covers "[m]echanical loaders for picking
coal, ores, excavated earth, pebbles, sand or other bulk
materials. These machines are usually combined with a conveyor
or an elevator (shaker type conveyor-loader, pick-up conveyor-
loader, etc.) [emphasis in original]." The trailed harvester
gathers and then conveys peat to a trailed vehicle by means of an
endless screen belt. The protestant states that the harvester is
nothing more than a conveyor, which, when attached to a tractor,
picks up peat and places it into another vehicle. As such, the
trailed harvester, which is similar to the mechanical loaders
described above, is described by Heading 8428, HTSUS,
specifically under subheading 8428.90.00, HTSUS.
HOLDING:
The Double Ridger is classifiable under subheading
8430.69.00, HTSUS, which provides for "[o]ther moving, grading,
leveling, scraping, excavating, tamping, compacting, extracting
or boring machinery, for earth, minerals or ores . . . [o]ther
machinery, not self-propelled . . . [o]ther." The corresponding
rate of duty for articles of this subheading is 2.5% ad valorem.
The Trailed Harvester is classifiable under subheading
8428.90.00, HTSUS, which provides for "[o]ther lifting, handling,
loading or unloading machinery (for example, elevators,
escalators, conveyors, teleferics) . . . [o]ther machinery." The
corresponding rate of duty for articles of this subheading is 2%
ad valorem.
You are instructed to deny the protest, except to the extent
reclassification of the trailed harvester as indicated above
results in a net duty reduction and partial allowance. 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
Commercial Rulings Division