• HQ H122257
• Oct 09, 2012

• Type : Classification • HTSUS : 4011.69.00
•  Related:   958100; 557232; 956372; 957627   

CLA-2 OT:RR:CTF:TCM H122257 CkG

TARIFF NO: 4011.69.00

Port Director
U.S. Customs and Border Protection
Port of Savannah
1 East Bay StreetSavannah, GA 31401
Attn: Scott Huntley, Import Specialist

RE: Application for Further Review of Protest No. 1703-10-100126; classification of tires for lawn and garden tractors

Dear Port Director, This is in response to the Application for Further Review of Protest No. 1703-2010-100126, filed on March 8, 2010, on behalf of OTR Wheel Engineering, Inc. (Protestant), contesting U.S. Customs and Border Protection’s (CBP) classification and liquidation of tires for lawn mowers in subheading 4011.99.85, Harmonized Tariff Schedule of the United States (HTSUS), as other new pneumatic tires, of rubber.

FACTS: The tires at issue are OTR Trac Master tires for lawn and garden tractors, part nos. T1304167508 (size 16x7.50-8), T13041885008 (18x8.5-8), T13041885010 (18x8.50-10), T130424120012 (24x12.00-12), T130426120012 (26x12.00-12), T130423105012 (23x10.50-12), and T130623105012 (23x10.50-12). The subject tires have an R1 tread and are advertised and sold for use on lawn and garden vehicles. There is no dispute that the R1 tread of the subject merchandise is a herring-bone pattern.

The subject merchandise was entered on December 04, 2009, at the Port of Savannah, in subheading 4011.92.00, HTSUS, which provides for “New pneumatic tires, of rubber: Other: Of a kind used on agricultural or forestry vehicles and machines.” CBP liquidated the entry on February 12, 2010, in subheading 4011.99.85, HTSUS, which provides for “New pneumatic tires, of rubber: Other: Other: Other.” Upon clarification that the tires at issue have a herring-bone tread, the Port now claims classification in subheading 4011.61.00, HTSUS, which provides for “New pneumatic tires, of rubber: Other, having a "herring-bone" or similar tread: Of a kind used on agricultural or forestry vehicles and machines.” Protestant claims classification in subheading 4011.69.00, HTSUS, which provides for “New pneumatic tires, of rubber: Other, having a "herring-bone" or similar tread: Other.” ISSUE:

Whether the subject new, pneumatic tires of rubber, having a herring-bone tread, are classified in subheading 4011.61.00, HTSUS, as tires of a kind used on agricultural or forestry vehicles and machines, or in subheading 4011.69.00, HTSUS, as “other” tires.

LAW AND ANALYSIS:

Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004.  (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).

Further Review of Protest No. 1703-10-100126 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts: specifically, whether tires for lawn and garden vehicles are classifiable as tires of a kind used on agricultural vehicles.

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.

The HTSUS provisions under consideration are as follows:

4011: New pneumatic tires, of rubber:

Other, having a "herring-bone" or similar tread:

4011.61.00: Of a kind used on agricultural or forestry vehicles and machines . . .

4011.69.00: Other . . .

* * * At GRI 1, there is no dispute that the instant merchandise is classifiable in heading 4011, HTSUS, as new pneumatic tires of rubber. At issue is the proper six-digit classification, which requires the application of GRI 6. GRI 6 requires that the GRI's be applied at the subheading level on the understanding that only subheadings at the same level are comparable.

It is also clear that the Trac Master tires at issue have a herring-bone or similar tread. CBP has concluded in prior rulings that “herring-bone” refers to a tread pattern consisting of rows of short slanted parallel lines going in the opposite directions from the center of the tread with the slant alternating row by row. These short slanted rows would meet in the center of the tire tread to form a "V" shape. See HQ 958100, dated March 25, 1997. This is supported by the Explanatory Note (EN) to heading 4011, HTSUS, in which tires classified in subheadings 4011.61 through 4011.69 (having a herringbone or similar tread) are pictured. The tire treads pictured therein generally have rows of short slanted parallel lines going in opposite directions with the slant alternating row by row, which meet in the center of the tire and form a "V". These pictures closely resemble the “R1” tread pattern of the Trac Master tires at issue. The R1 Trac Master tires thus have a herring-bone tread.

At the six-digit level, protestant contests CBP’s position that the instant tires are classifiable in subheading 4011.61.00, HTSUS, as tires of a kind used on agricultural or forestry vehicles and machines. Protestant claims classification in subheading 4011.69.00, HTSUS, as “other” tires.

The term “agriculture” is not defined in the HTSUS or the Explanatory Notes. When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. See Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). The court has stated on many occasions that "[t]o ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.'" Id. The Merriam Webster Dictionary Online defines “agriculture” as “the science, art, or practice of cultivating the soil, producing crops, and raising livestock and in varying degrees the preparation and marketing of the resulting products : farming.” See http://www.merriam-webster.com/dictionary/agriculture .

In addition, in United States v. Boker & Co., 6 Ct. Cust. 243 (1915), the Court of Customs Appeals (the predecessor to the Court of Appeals for the Federal Circuit) construed the word "agriculture" to include only that which provides the substantial requirements of life and comfort:

While, therefore, "agriculture" in its broad application may extend into and include elements of horticulture, viticulture, arbor culture, and other allied industries and pursuits, in its primary significance it extends to and embraces only those parts of all such as pertain to human and incidental animal subsistence--the substantial requirements of life (food) and possibly man's comfort (raiment), and not the merely pleasurable pursuits; the necessities and not the essentially pleasurable or ornamental., and not the purely pleasurable pursuits. United States v. Boker & Co., 6 Ct. Cust. 243 at 244-245.

Pursuant to the above definition, CBP has consistently held that the uses to which the instant tires are put, namely grooming and caring for lawns, are not considered agricultural pursuits because they do not provide for the substantial requirements of life and comfort but rather lead to the production of that which is essentially pleasurable or ornamental. See e.g., HQ 557232, dated September 28, 1993. CBP has thus declined to classify vehicles such as lawn mowers and tractors with multiple attachments for mowers, snow cleaners, harvesting, etc., as agricultural machinery. See HQ 956372, dated March 14, 1995; HQ 957627, dated July 25, 1995.

We also note that agricultural machinery is specifically provided for in heading 8432, HTSUS, as “agricultural…machinery for soil preparation or cultivation…,” while grass mowers and mowers for lawns, parks and sports grounds are specifically provided for in a separate heading, 8433, HTSUS, as “grass or hay mowers.” The existence of a separate and specific provision for lawn mowers is clear evidence that they are not considered agricultural machinery. Similarly, the U.S. Tire and Rim Association, the standardizing body for the tire, rim, valve and allied parts industry for the United States, groups agricultural and lawn and garden tires into separate categories; in the Tire and Rim Association Yearbook, specifications and standards for agricultural tires are located in the Agricultural section, while standards for Lawn and Garden tires are placed in the Industrial section. See U.S. Tire and Rim Association 2009 Yearbook.

Lawn or garden care and agricultural work thus constitute separate, distinct activities under the HTSUS. We now examine the use to which the instant tires are put. Subheading 4011.69.00, HTSUS, is a “principal use” provision governed by Additional U.S. Rule of Interpretation 1(a), HTSUS, which provides that:

In the absence of special language or context which otherwise requires--a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.

The Court of International Trade, in Group Italglass, U.S.A., Inc. v. United States, 839 F. Supp. 866 (Ct. Int’l Trade 1993), stressed “that it is the principal use of the class or kind of good to which the imports belong and not the principal use of the specific imports that is controlling under the Rules of Interpretation.” Group Italglass, 839 F. Supp. at 867. The courts have provided factors, which are indicative, but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. These include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner

of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (1976). See also Lennox Collections v. United States, 20 C.I.T. 194, 196 (1996).

The physical characteristics of the instant tires—namely, the tire tread design, size and load rating—support their use as tires for lawn and garden vehicles as opposed to agricultural vehicles. While tires with R1 treads are also used on agricultural tractors, the product details offered on the Protestant’s website note that the Trac Master tire tread lugs are specially designed to be less aggressive on turf, for minimal turf disturbance. See http://www.otrwheel.com/tires/trac-master. The smaller size of the tires compared to tires for use with agricultural tractors is also indicative of lawn and garden use. First, the instant tires fall within the size ranges of the Tire and Rim Association guidelines for lawn and garden tires. For example, the section width of the OTR tires ranges from 7.5 to 12 inches. Similarly, the section width of tires used on lawn and garden tractors ranges from 4 to 12 inches. Tires for use on agricultural tractors trend significantly larger and stronger. Protestant submits comparison photographs of the Trac Master tires and standard agricultural tires also sold by OTR. The photographs demonstrate the vast difference in size between the two types of tires. The 2009 TRA Yearbook further reveals vast differences in tire size for lawn and garden tires versus agricultural tires. For example, the maximum section width of the Trac Master tires is 12 inches; the maximum section width listed in the TRA Yearbook for agricultural tires is 41 inches. Similarly, the load ratings for lawn and garden versus agricultural tires revealed in the TRA Yearbook demonstrate the need for stronger tires to support larger and heavier agricultural equipment. For example, the maximum load limit listed for lawn and garden tires in the TRA Yearbook is 2680 lbs. at 10mph at the highest inflation pressure; for agricultural tires, e.g., tires for use on agricultural harvesting equipment, the maximum load limit is over 25,000 lbs. at 10mph. The load limit of the instant tires ranges from 710 lbs. to 1760 lbs. at 10mph.

The submitted product literature also indicates that the tires are marketed and advertised for use on lawn and garden tractors. Photographs included with the submission show the Trac Master tires in use on a Kubota riding lawn mower. The OTR website notes that they are designed for small equipment, used on turf. OTR marketing literature describes the Trac Master as “OTR’s premium lawn and garden tire.” The Trac Master tires are similarly advertised for lawn/garden use by independent retailers. See e.g., http://www.lawnmowertires.com/otr_lawn_mower_tires.html.

The Trac Master tires are of a kind principally used on lawn and garden tractors. Lawn and garden vehicles are not used for raising livestock, cultivating the soil, or raising crops. They are used to groom and care for lawns, which is an ornamental purpose. As such, tires for lawn and garden vehicles are not of a kind used on agricultural vehicles or machinery and are thus classified in subheading 4011.69.00, HTSUS.

HOLDING:

By application of GRIs 1 and 6, the OTR Trac Master tires (part nos. T1304167508, T13041885008, T13041885010, T130424120012, T130426120012, T130423105012, and T130623105012) are classified in heading 4011, specifically subheading 4011.69.00, which provides for “New pneumatic tires, of rubber: Other, having a "herring-bone" or similar tread.” The 2010 column one, general rate of duty is Free.

You are instructed to allow the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division