CLA-2 CO:R:C:M 951434 AJS

Mr. L. J. Stout
General Sales Manager
Massey-Ferguson Industrial Machinery Inc.
1700 Belle Meade Court
Lawrenceville, GA 30243

RE: Tractors; Suitable for agricultural use; U.S. v. F.W. Myers & Co.; HQ 951506; HQ 054346; TC 434.1 c; H. Conf. Rep. No. 576; CIE N-71/77.

Dear Mr. Stout:

This is in reply to your letter of March 26, 1992, requesting the tariff classification of various Massey- Ferguson (MF) tractor models under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The models of tractors at issue are the MF 60HX, 40E, 30E and 50HX, 50H, 50EX, 50E (50 series). These tractors are being used to handle manure, move feed and grain, load fertilizer, carry fruit and vegetables, install field drainage systems and irrigation systems, handle silage, clean feed lots, accomplish field and tillage work, mow and maintain pastures and grasslands.

The MF 30, 40 and 50 series models are upgraded versions of tractors which Customs previously determined are "suitable for agricultural use." The improvements made to these models involved commercial enhancements, intended to promote salability and to stay current with technology, such as in the area of engine and working tool performance. However, the basic tractor base and overall capabilities, as well as the scope of use, have remained the same.

The MF 30E, 40E, 50E and 50EX are power take-off (PTO) tractors. PTOs provide the power for the various attachments which are used with tractors. The MF 30E has a PTO of 30.8 kW, the 40E a PTO of 38 kW, and the 50E and 50EX possess a PTO of 44.9 kW. The MF 50H, 50HX and 60HX are not PTO tractors, but can accommodate an optional PTO.

It is our understanding that the additional letter(s) added to the basic model number of the tractor indicate, for example, the country of origin, four wheel drive capabilities or that substantial updated specifications are involved. See Master Tractor Classification Index, CIE N-71/77, Supplement #2 (April 8, 1983).

ISSUE:

Whether the subject tractors are properly classifiable within subheading 8701.90.10, HTSUS, which provides for tractors suitable for agricultural use; or classifiable within subheading 8701.90.50, HTSUS, which provides for "other" tractors.

LAW AND ANALYSIS:

Subheading 8701.90.10, HTSUS, provides for tractors suitable for agricultural use. The phrase "suitable for agricultural use" has been interpreted by the courts as requiring that a tractor be actually, practically, and commercially fit for such use. Suitability does not require that the tractor be chiefly used in agricultural pursuits, but there must be evidence of more than a casual, incidental, exceptional or possible use in this area. There must be evidence of substantial actual use in a recognized agricultural pursuit. U.S. v. F.W. Myers & Co., Inc., C.A.D 1097, 476 F.2d 1377 (1973); See also HQ 951506 (5/29/92).

It is claimed that the subject models are upgraded versions of tractors which we have previously ruled are "suitable for agricultural use." In HQ 054346 (1/10/78), we ruled that models of the MF 50 series satisfy this requirement. In TC 434.1 c (10/9/69), we ruled that models of the MF 30 and 40 series also satisfy this requirement. However, we have not ruled on the suitability for agricultural use of the MF 60HX tractor.

Congress has indicated that earlier tariff decisions must not be disregarded in applying the HTSUS. The conference report to the 1988 Omnibus Trade Bill states that "on a case-by-case basis prior decisions should be considered

instructive in interpreting the HTS[US], particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS[US]." H. Conf. Rep. No. 576, 100th Cong., 2d Sess., p. 550, reprinted in 1988 U.S. CODE CONG. & ADMIN. NEWS p. 1582. In this case, the nomenclature previously by the courts and Customs is identical and the text HTSUS does not require a different result. Accordingly, we find these previous tariff decisions instructive for interpreting subheading 8701.90.10, HTSUS, and its applicability to the MF 30, 40 and 50 series tractors.

A product end-use survey covering the period 1989 - 91 was submitted which indicates that approximately one third of the 350 subject tractors sold were intended for use in the various agricultural pursuits outlined previously. Based on this survey and previous tariff decisions, we find that the subject MF 30, 40 and 50 series models are "suitable for agricultural use." Therefore, these tractors satisfy the terms of subheading 8701.90.10, HTSUS, and are properly classifiable therein.

The submitted survey, however, indicates that only 4 of the MF 60HX sales were intended for agricultural use. In our view, four sales does not establish substantial actual use in a recognized agricultural pursuit. Evidence of additional sales must be provided in order to establish that the MF 60HX models are suitable for agricultural use. Until this time, the model 60HX is classifiable within subheading 8701.90.50, HTSUS, which provides for "other" tractors which are not suitable for agricultural use.

HOLDING:

The tractors models MF 30E, 40E, 50HX, 50H, 50EX and 50E are classifiable within subheading 8701.90.10, HTSUS, which provides for tractors suitable for agricultural use, duty-free.

The tractor model MF 60HX is classifiable within subheading 8701.90.50, HTSUS, which provides for "other" tractors, dutiable at the General Column 1 rate of 2.2 percent ad valorem.


Sincerely,


John Durant, Director
Commercial Rulings Division