CLA-2 CO:R:C:M 952031 DWS
District Director
U.S. Customs Service
Suite 337
423 Canal Street
New Orleans, LA 70130-2341
RE: Protest No. 2002-2-100095; Diesel Engines; Hanging Tractors;
Agricultural Use; Log Skidders; HQ 081641; Norman E. Jensen,
Inc. v. U.S.; 8408.90.90
Dear District Director:
This is our response on Application for Further Review of
Protest No. 2002-2-100095, dated February 12, 1992, concerning
your action in classifying and assessing duty on diesel engines
under the Harmonized Tariff Schedule of the United States
(HTSUS).
FACTS:
The subject merchandise consists of diesel engines used in
the operation of hanging tractors. The tractor, used on an
overhead conveyor system, transports bananas from the field to
storage and processing areas. The importer states that these
machines can only be used above the ground where wire and
overhead tracks have been installed between rows of banana
plants.
On a banana farm, cableways are spaced 100 meters apart.
After 10 or 12 bunches of bananas are attached to and hung from
trolleys on the cableway, they are connected together in
trainlike fashion, using spacer bars. A worker then pulls the
train by hand to the main cableway. Then, the hanging tractor
moves up and down the line collecting the small trains left on
the feeder lines. Using transfer switches to bring the small
trains onto the main line, the tractor operator assembles a train
of 80 to 100 bunches and tows the whole load to a packing
station. The individual bunches of bananas are then processed
and stored.
ISSUE:
Whether the hanging tractor, in transporting bunches of
bananas from the field to storage and processing areas, is
involved in a harvesting operation? Whether the subject diesel
engine is used in agricultural equipment?
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 8408.90.10,
HTSUS, which provides for: "[c]ompression-ignition internal
combustion piston engines (diesel or semi-diesel engines):
[o]ther engines: [t]o be installed in agricultural or
horticultural machinery or equipment." However, the entries were
liquidated under subheading 8408.90.90, HTSUS, which provides
for: "[o]ther engines: [o]ther."
In Norman E. Jensen, Inc. v. U.S., 408 F.Supp. 1379, 76
Cust. Ct. 42 (1976), the issue considered was whether the
harvesting of a timber crop is an agricultural pursuit. The
merchandise in that case was a "Tree Farmer" log skidder.
Skidding involves the removal of a severed tree trunk from the
area in which it was growing to a landing area for
transportation.
The Court in Jensen agreed with witnesses, stating that "the
fallen tree would have no economic value without the skidding
process. In addition, without removal of the tree, it would
impede the planting of another crop of trees. . . . The
harvesting of a timber crop is an agricultural pursuit and
remains so until . . . . it leaves the forest." See also HQ
081641, dated November 16, 1989.
It is our position that, for classification purposes, the
subject hanging tractor is similar to the "Tree Farmer" log
skidder. With regard to the hanging tractor, its operation can
dramatically increase the efficiency of a banana harvest by
quickly removing the picked bunches of bananas and making room
for others.
The "Tree Farmer" in Jensen removed logs from the area in
which they were growing and placed them in a landing area for
transportation. The hanging tractor is similar in that it
removes bunches of bananas from where they were growing and
placing them in a storage and processing area.
Just as the "Tree Farmer" log skidder was held to be part of
an agricultural pursuit, we hold that the hanging tractor is part
of an agricultural pursuit. The harvesting of a banana crop is
an agricultural pursuit and remains so at least until the bananas
leave the field. Therefore, the subject diesel engine is
classifiable under subheading 8408.90.10, HTSUS.
HOLDING:
The subject diesel engines are classifiable under subheading
8408.90.10, HTSUS, which provides for: "[c]ompression-ignition
internal combustion piston engines (diesel or semi-diesel
engines): [o]ther engines: [t]o be installed in agricultural or
horticultural machinery or equipment."
The protest should be granted in full. 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