CLA-2 CO:R:C:M 955081 MMC

District Director
U.S. Customs Service
300 S. Ferry Street
Rm. 1001
Terminal Island, CA 90731

RE: Protest No. 2704-93-102469; Commercial Front Mowers; EN 84.33; HRL 952244, 066221

Dear District Director:

The following is our decision regarding the request for further review of Protest No. 2704-93-102469, which concerns the classification of commercial front mowers under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The protestant, Ford New Holland, Inc. (FNH), has been importing commercial mowers from the Ishikawajima Shibaura Machinery Co., Ltd. of Japan, for the past several years. These articles are identified as models CM 222, CM 224, CM 272, and CM 274. The first two digits refer to the net engine horsepower, and the third digit designates two or four-wheel drive.

According to protestant's catalogue, all of these models are 4 wheeled riding mowers, with a driving seat, a 3 cylinder liquid- cooled rear-mounted diesel engine, power hydrostatic steering, two forward and two reverse speeds, a front mounted power take off, independent right and left break drums, two pedal foot speed controls, front and rear turf tires, drawbar, and a standard two- post foldable rollover protective structure.

Four different mower decks may be suspended from the cab's front carriers. They are a 60 or 72 inch side-discharge mower, a 72 inch rear-discharge mower which, according to the catalogue, keeps clippings off sidewalks and roadways, or a 60 inch flail mower which uses cupped blades to shred clippings for better mulching and decomposition. The decks may be hydraulically lifted and lowered for ease of transport, servicing and repair.

Additionally, the catalogue states that the mowers "...are designed specifically for production mowing", but "...options and attachments are provided that stretch an investor's dollar". Such options and attachments include, a hydraulically operated grass collection system for the side-discharge mowers, a 52 or 62 inch wide heavy-duty two stage snow thrower that allows for clearing snow from drives, walkways or parking lots, a 60 inch front blade for clearing snow or other light-duty blade work and a leaf and debris blower which blows air at 260 mph to clear sidewalks, parking lots, and golf greens of litter and leaves.

From the literature, it appears the mowers are designed specifically to mow lawns on large estates, commercial grounds, golf courses and the like. The mowers were entered under heading 8701, HTSUS, which provides, in pertinent part, for tractors. The entries were liquidated under heading 8433, HTSUS, which provides, in pertinent part, for grass or hay mowers, on June 4, and 11, 1993. A protest was timely filed on August 2, 1993.

The subheadings at issue are as follows:

8433.11.00 [h]arvesting or threshing machinery, including straw or fodder balers; grass or hay mowers; machines for cleaning, sorting or grading eggs, fruit or other agricultural produce, other than machinery of heading 8437; parts thereof: [m]owers for lawns, parks or sports grounds: [p]owered with the cutting device rotating in a horizontal plane.

8701.90.10 [t]ractors (other than those of heading 8709): [o]ther: [s]uitable for agricultural use.

ISSUE:

Are the commercial mowers classifiable as tractors or grass mowers?

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, HTSUS, 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.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be consulted. The Explanatory Notes (EN), although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128, (August 23, 1989). En 84.33, pg. 1211- 1212, states, in pertinent part, that:

(A) [h]arvesting or threshing machinery, including straw or fodder balers; grass or hay mowers

These include:

(1) [l]awn mowers, whether worked by hand or motor driven. They may have a cutter bar like an agricultural mower, rotary blades which cut the grass against a fixed horizontal blade, or a rotating disc with knives on the outer edge...

[t]his heading also covers lawn mowers, known as riding mowers, consisting of three or four wheeled basic machines fitted with a driving seat and having a permanently attached cutter, i.e., one which is removed only for repair or maintenance. Since their principal function is the mowing of lawns, they remain in this heading even if they have a coupling device for hauling or pushing light attachments such as a trailer. The protestant argues that since their mowers do not have permanently attached cutters, they are not lawn mowers, but are instead tractors suitable for agricultural use. We disagree.

En 87.01, pg. 1425, states, in pertinent part, that:

[t]he heading does not cover propelling bases specially designed, constructed or reinforced to form an integral part of a machine performing a function such as lifting, excavating, levelling, etc., even if the propelling base uses traction or propulsion for the execution of this function...

[a]s a general rule, propelling bases forming an integral part of a machine designed for handling, excavating, etc., can be distinguished from the tractors of this heading by their special constructional features (shape, chassis, means of locomotion, etc.). For propelling bases of the tractor type, various technical features relating essentially to the structure of the complete unit and to equipment specially designed for functions other than hauling or pushing should be taken into consideration.

We are of the opinion that the present articles are designed and intended to operate as an integrated unit, a propelling base and a mowing deck, for the principal function of mowing. Additionally, the mowers meet the description of lawn mower.

Despite the EN proviso for permanently attached blades, the models in question are by design and function, of the class or kind of machine known as riding lawn mowers or sometimes lawn tractors. All models in question are 4 wheeled riding mowers, with a driving seat. While the cutter is not permanently attached, the principal function of the mower is the mowing of lawns. The only reason the blade is removable is to accommodate ancillary coupling devices, which, on occasion, remove snow or blow leaves. Additionally, it appears from the pictures in the literature, that the commercial front mowers are designed specifically to mow lawns on large estates, commercial grounds, golf courses and the like, and are marketed to people responsible for mowing those areas.

This finding is consistent with Headquarters Ruling Letter (HRL) 952244, dated October 5, 1992. The subject of this ruling, a 92" mower was sold exclusively to sod farms and operated with its cutting blades in a horizontal plane, and was powered from the power take off of a tractor. It was pulled behind a tractor for the purpose of cutting grass on sod farms. The ruling held that the term "lawn" is defined as "ground (as around a house or in a garden or park) that is covered with grass and is kept mowed. Webster's New Collegiate Dictionary, pg. 652 (1977). Because the 92" mower was used to cut lawns it was classified under subheading 8433.11.00, HTSUS. See also, HRL 066221, dated February 24, 1982, which classified mowers under item 666.10 of the Tariff Schedules of the United States (TSUS), the precursor provision to subheading 8433.11.00, HTSUS. Therefore, the articles in question are classifiable under subheading 8433.11.00, HTSUS.

HOLDING:

Models CM 222, CM 224, CM 272, and CM 274 are classifiable under subheading 8433.11.00, HTSUS, as [h]arvesting or threshing machinery, including straw or fodder balers; grass or hay mowers; machines for cleaning, sorting or grading eggs, fruit or other agricultural produce, other than machinery of heading 8437; parts thereof: [m]owers for lawns, parks or sports grounds: [p]owered with the cutting device rotating in a horizontal plane, with a general column one duty rate of 4% ad valorem.


Sincerely,

John Durant, Director
Commercial Rulings Division