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