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