CLA-2OT:RR:CTF:TCM: H241403 ERB
Mr. David G. Forgue
Barnes, Richardson & Colburn, LLP
303 East Wacker Drive
Suite 1020
Chicago, IL 60601
RE: Reconsideration of NY N137739 and NY N240982; Tariff classification of a various models of liquid/powder spraying vehicles
Dear Mr. Forgue:
U.S. Customs and Border Protection (CBP) issued you, on behalf of your client, AGCO Corporation (AGCO), New York Ruling Letter (NY) N137739, dated January 6, 2011. NY N137739 pertains to the tariff classification under the Harmonized Tariff Schedule of the United States, (HTSUS) of RoGator vehicles. On April 19, 2013 you submitted a request for reconsideration of this ruling, with follow up information provided to this office on May 13, 2013. Also dated May 13, 2013 was a submission to this office requesting reconsideration of NY N240982, dated May 7, 2013, a tariff classification ruling issued to you on behalf of AGCO which regarded the tariff classification of the TerraGator vehicles. In an email dated May 29, 2014 with this office, you asked that both reconsideration requests be treated as consolidated. This office will honor that request.
We have reviewed NY N137739, and NY N240982 and do not find them be in error with regards to the tariff classification. Our analysis follows.
FACTS:
NY N137739, dated January 6, 2011 states the following:
The items under consideration have been identified as RoGator Sprayers (Model #’s 994H, 994, 1194H, 1194, 1396); various models of agricultural liquid/powder spraying vehicles. These vehicles are used for the application of liquid and powder fertilizers, insecticides and herbicides. You state in your request that the vehicles use between 275-360 peak horsepower engines and are equipped with an attached tank with extendable boom for the application of the materials; the vehicles, themselves, are equipped with a dry box and spreading mechanism.
The applicable subheading for the RoGator Sprayers (Model #’s 994H, 994, 1194H, 1194, 1396) will be 8705.90.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Special purpose motor vehicles, other than those principally designed for the transport of persons or goods…: Other.” The rate of duty will be Free.”
Additional information was provided by your office. Specifically, that all RoGator models are equipped with high-floatation tires, which prevention compaction of the soil, and assists when the vehicle is working on wet soil. All models have a standard 50” clearance, adjustable width axels. RoGators come equipped with high torque engines which allow the vehicle to haul loads through fields at low engine revolutions per minute, with some variances in speed depending on the model. The subject merchandise are also equipped with control systems, plumbing, and capabilities for a variety of liquid and dry applications. The models can accommodate single bin, dual bin, and adjustable split bins so that different combinations of products can be dispersed at the same time.
NY N240982, dated May 7, 2013 states the following:
The items under consideration have been identified as TerraGator agricultural applicators (Model #’s TG7300, TG8300, and TG8400); various models of agricultural liquid/powder spraying vehicles. These vehicles are used for the application of liquid and powder fertilizers, insecticides, chemicals or nutrient. You state in your request that all TerraGator models come equipped with high-floatation tires. In conjunction with the high-flotation tires, all models of the TerraGator have stnandard double reduction outboard planetary rear axles. In addition, the axles have a very high rated weight capacity, which allows farmers to carry more fertilizer, chemical or nutrient to the field.
In addition to the specialized rear axles, all TerraGator models also have specialized front axles. Models T7300 and T8300 [sic] both have a single front tire, while model T8400 [sic] has two front tires. The T7300 and T8300 [sic] models have a freewheeling design with a rated capacity of 14,000 pounds. The front forks also have a three degree cant that allows them to turn relatively sharply while minimizing ground disturbance. The T8400 [sic] model has a heavy-duty non-drive axle designed for high-floatation tires and the benefits that come with them. The front axle in the T84-0- [sic] also has a rated capacity of 14,000 pounds.
All of the TerraGator models also come equipped with high-torgue engines which allow the vehicles to haul loads through fields at low engine revolutison per minute. The T7300 [sic] generates 1121 foot pounds of torque at 1500 rpm, whiel both the T 8300 and T8400 [sic] generate 1136 foot-pounds of torque at 1500 rpm.
The subject TerraGator models come equipped with control systems, plumbing, and capabilities for a variety of liquid and dry applications. The applicators are designed to accommodate large (at least 1800 gallon) liquid product tanks, as well as a variety of booms used to disperse the liquid product. The applicators are also designed to accommodate dispersal of a variety of dry products. The TerraGators can accommodate single bin, dual bin, and adjustable split bins, so that different combinations of dry product can be dispersed at the same time. Because these system require substantial plumbing and air pressure control, all TerraGator models are also equipped with this equipment.
…
This vehicle is similar to another vehicle imported by AGCO, which was subject to NY ruling N137739.
The applicable classification subheading for the TerraGator agricultural applicators (Model #’s TG7300, TG8300, and TG8400) will be 8705.90.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Special purpose motor vehicles, other than those principally designed for the transport of persons or goods …: Other.”
ISSUE:
Whether the subject various models of agricultural liquid/powder spraying vehicles are agricultural machinery for soil preparation, of heading 8432, HTSUS, tractors of heading 8701, HTSUS, or special purpose motor vehicles of heading 8705, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods 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 in this case are as follows:
8432 Agricultural, horticultural or forestry machinery for soil preparation or cultivation; lawn or sports ground rollers; and parts thereof:
8432.40.00 Manure spreaders and fertilizer distributors
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8701 Tractors (other than tractors of heading 8709):
8701.90. Other:
8701.90.10 Suitable for agricultural use
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8705 Special purpose motor vehicles, other than those principally designed for the transport of persons or goods (for example, wreckers, mobile cranes, fire fighting vehicles, concrete mixers, road sweepers, spraying vehicles, mobile workshops, mobile radiological units):
8705.90.00 Other
Section Note 1(l) of Section XVI, which covers Chapter 84 states the following:
This section does not cover:
(l) Articles of section XVII
Section XVII covers Chapter 87. Therefore, if the subject merchandise is classified in headings 8701 or 8705, HTSUS, it cannot be classified in heading 8432, HTSUS.
Note 2 to Chapter 87 state the following, in relevant part:
For purposes of this chapter, “tractors” means vehicles constructed essentially for hauling or pushing another vehicle, appliance or load, whether or not they contain subsidiary provision for the transport, in connection with the main use of the tractor, of tools, seeds, fertilizers or other goods.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provides a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg 35127 (August 23, 1989).
The EN 84.32, HTSUS, states the following, in relevant part:
This heading covers machines, whatever their mode of traction, used in place of hand tools, for one or more of the following classes of agricultural, horticultural or forestry work, viz.:
Preparing the soil for cultivation (clearing, braking, tilling, ploughing, loosening, etc.).
Spreading or distributing fertilisers, including manure, or other products to improve the soil.
Planting or sowing.
The working or maintenance of the soil during the growing period (hoeing, weeding, cleaning, etc.).
The EN 87.05 states the following, in relevant part:
This heading covers a range of motor vehicles, specially constructed or adapted, equipped with various devices that enable them to perform certain non-transport functions, i.e., the primary purpose of a vehicle of this heading is not the transport of persons or goods.
This heading includes:
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(6) Spraying lorries (trucks) of all kinds, whether or not fitted with heating equipment, for spreading tar or gravel, for agricultural use, etc.
By its text, heading 8705, HTSUS, provides for motor vehicles with a special purpose, other than those principally designed for the transport of persons or goods. Motor vehicles which are principally designed for the transport of persons are provided for in headings 8702 and 8703, HTSUS. Motor vehicles specially designed for carrying goods are classified in 8704, HTSUS. Specialty motor vehicles of heading 8705, HTSUS, may share some common characteristics with vehicles of the previous headings, but with the additional qualifier of having a “special purpose.” Congress’ addition of the term “for example,” followed by eight different exemplars evidence that it was their intent to include a wide variety of motor vehicles with divergent purposes as classified therein. Vehicles principally designed for a special purpose is considered a principal use provision, governed by Additional U.S. Rule of Interpretation 1.
AUSRI 1 states the following, in relevant part:
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…
AGCO’s submission, as well as descriptive literature is clear that the subject RoGators and TerraGators are specially designed to hold fertilizer, protective farm chemicals, seed or other nutrients, in either single, double, or adjustable split bins and then at periodic or intermittent times, spray its payload onto fields. Many characteristics of the RoGator and TerraGator are designed especially for this purpose, including, but not limited to, the high flotation tires which can easily traverse fields with wet conditions, tires with a wide enough base so as to dissipate the pressure the tires put on the soil to avoid compaction, a high-torque engine, and control systems, plumbing and capabilities for a variety of liquid and dry applications. The components of the RoGators and TerraGators which spray the payload are fully integrated into the vehicle as a whole. Thus, the tariff term “spraying vehicle” of heading 8705, HTSUS, fully describes the subject merchandise, and excludes classification in heading 8432, HTSUS.
Customs has also had previous occasion to differentiate among motor vehicles and special purpose motor vehicles. In Headquarters Ruling (HQ) H235561, dated June 9, 2014, CBP determined that two models of rubber track crawlers were specifically designed for the transport of goods and cargo because of unique technical specifications. But beyond the special cargo holds, the crawlers did not possess any accessories or specialized equipment that would enable the vehicles to perform any function beyond the conveyance of cargo over terrain. Consequently, the crawlers were not classified in heading 8705, HTSUS.
Similarly, in HQ H007048, dated January 23, 2009 this office noted that a vehicle with a crane, described as a “Log Forwarder” had design features which indicated that the principal function of the vehicle was to transport loads of felled timber over difficult terrain, but it did not have its own specified purpose beyond that. Both rulings, which ultimately classified goods in heading 8704, HTSUS, are instructive here because the subject spraying vehicles do have a single, specified use, to the exclusion of all other uses for a vehicle. It does not merely transport the fertilizer, nutrients, or chemicals from one location to another. It sprays its payload while in motion over farmlands. This is a special purpose, and one that can only be performed by a vehicle.
This analysis comports with the ENs of 87.05 for goods classified therein. Among the vehicles listed under paragraph (6) of the ENs 87.05 are spraying lorries (trucks) of all kinds, for agricultural use. See EN 87.05(6). This also fully describes the subject merchandise as a motor vehicle with the specially designated function or purpose of dispersing or spraying liquid or powder materials in an agricultural context.
AGCO argues that the subject merchandise is not classified in heading 8705, HTSUS, because it is not a “lorry.” Yet, “lorries” have a broad definition, and it is clarified by the use of “trucks” in parenthesis, which has an equally broad applicability, and both could apply to the subject merchandise. RoGators and TerraGators satisfy the definition of either a lorry or a truck insofar as they are a means of conveyance, provided with wheels and axles, an engine, and here with a specialty use of carrying and spraying various liquids or powders, under the operation of a person, and are capable of operating on a road (paved or dirt).
Furthermore, the ENs are not legally binding, rather they explain the scope of headings, often by means of exemplars, of which these examples are not necessarily all inclusive or all restrictive. But the ENs should not restrict or expand the scope of a heading. Rather, they should describe and elaborate on the nature of goods falling within those headings as well as the nature of goods falling outside those headings. See HQ 088031, dated October 8, 1991; and see HQ H234514, dated September 25, 2013 (“As a rule the ENs cannot restrict or limit the scope of the legal texts to which they correspond.”) The additional information you provided in your supplemental submissions to this office, such as the tire height clearance, adjustable-width axles, 7-speed Bonfiglioli 609 transmission, high-torque engine, and description of the control system and plumbing does not remove the subject RoGators from classification as a specialty vehicle, of heading 8705, HTSUS.
Heading 8701, HTSUS, which provides for “tractors” also does not describe the subject merchandise. Note 2 to Chapter 87 clarifies that tractors are constructed for hauling or pushing a load. But the subject RoGators and TerraGators are designed specially to carry and spray a load, not to haul or push that load.
HOLDING
By application of GRI 1, the subject RoGator Sprayers (Model #’s 994H, 994, 1194H, 1194, 1396), and TerraGator agricultural applicators (Model #’s TG7300, TG8300, and TG8400) are classified in heading 8705, HTSUS. They are specifically provided for under subheading 8705.90.00, HTSUS, which provides for Special purpose motor vehicles, other than those principally designed for the transport of persons or goods (for example, wreckers, mobile cranes, fire fighting vehicles, concrete mixers, road sweepers, spraying vehicles, mobile workshops, mobile radiological units): Other.” The column one, general rate of duty is free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov
EFFECT ON OTHER RULINGS
NY N232035, dated September 12, 2012, is hereby AFFIRMED.
Myles B. Harmon
Director
Commercial and Trade Facilitation Division