Application for Further Review of Protest No. 4503-10-100004; classification of tires for lawn mowers

HQ H122251 March 05, 2013 CLA-2 OT:RR:CTF:TCM H122251 CkG CATEGORY: Classification TARIFF NO: 4011.99.85, 4011.69.00 Attn: Yvonne Williams U.S. Customs and Border Protection Port of St. Louis 4477 Woodson RoadSt. Louis, MO 63134 RE: Application for Further Review of Protest No. 4503-10-100004; classification of tires for lawn mowers Dear Port Director, This is in response to the Application for Further Review of Protest No. 4503-1-100004 filed on behalf of the protestant on March 8, 2010, contesting Customs and Border Protection’s (CBP) classification and liquidation of tires for lawn mowers in subheading 4011.99, Harmonized Tariff Schedule of the United States (HTSUS), as “other” pneumatic tires, of rubber. FACTS: The subject merchandise was entered on June 18, 2009, at the Port of St. Louis. CBP liquidated the entry on September 18, 2009, in subheading 4011.99, HTSUS. Protestant claims classification in subheading 4011.92, HTSUS, as “other” tires of a kind used on agricultural or forestry vehicles and machines. At issue are 105 models of tires for use on lawn mowers and other lawn, garden, or horticultural vehicles and machines. These models fall into several categories based on their tread type: Turf, Smooth, Sawtooth, Turf Tech, Rib, Stud, JS87P, Mowku Turf, Turf TL, Turf TT, Tractor, Turf Pro Tech, Squared Sidewall Smooth, Rounded Sidewall Smooth, Dimpled Knobby, Snow, and Wheelbarrow Rib. ISSUE: Whether the subject tire styles are classified in subheading 4011.92.00, HTSUS, as tires of a kind used on agricultural or forestry vehicles and machines, or in subheading 4011.99.85, 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), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protest No. 4503-10-100004 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. 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: 4011.69.00: Other… Other: 4011.92.00: Of a kind used on agricultural or forestry vehicles and machines . . . 4011.99: Other: 4011.99.85: Other . . . * * * * * The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). Heading 8432, HTSUS, provides for “Agricultural, horticultural or forestry machinery.” The EN to heading 8432, HTSUS, provides, in pertinent 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.: (I)   Preparing the soil for cultivation (clearing, breaking, tilling, ploughing, loosening, etc.). (II)  Spreading or distributing fertilisers, including manure, or other products to improve the soil. (III) Planting or sowing. (IV) The working or maintenance of the soil during the growing period (hoeing, weeding, cleaning etc.). * * * * * 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 eight-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. Protestant claims classification of the instant tires in subheading 4011.92.00, HTSUS, as tires of a kind used on agricultural machines. Protestant argues that horticulture is a subcategory of agriculture, and therefore that mowers, as horticultural machinery, should also be considered agricultural machinery. 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. Furthermore, we note that “agricultural” and “horticultural” are specifically and separately referenced in the HTSUS, indicating that horticulture is not, for tariff purposes, simply a subset of agriculture. Heading 8432, HTSUS, for example, provides for “Agricultural, horticultural or forestry machinery.”  Subheading 8424.81, HTSUS, similarly provides for, in pertinent part, other agricultural or horticultural appliances. While horticulture and agriculture may overlap, they are considered to constitute distinct activities in the HTSUS. 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 (TRA), 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. Protestant also notes that machines for cleaning, sorting or grading eggs, fruit or other agricultural produce are also provided for in heading 8433, HTSUS. Protestant essentially argues that if machinery for some agricultural pursuits are provided for in heading 8433, HTSUS, that all products classified in that heading, including lawn and grass mowers, must be considered to share this common purpose. However, to the extent that any of the machines classified in heading 8433 can be considered agricultural, they are separated in the heading text from lawn mowers by a semicolon. Items separated by a semi-colon in the headings of the HTSUS need to be considered separately for the purposes of classification. See e.g., HQ H047559, dated March 16, 2010; HQ 956924, dated August 25, 1994; and HQ 087835, dated January 8, 1991. The semicolon groups the products classifiable in heading 8433 into separate categories, the products of which may have a different character, purpose, or use than those in other parts of the heading. Thus, the inclusion of some machinery destined for agricultural pursuits in heading 8433, HTSUS, has no bearing on whether lawn mowers are also considered agricultural machinery. Protestant further notes that prior to 2002, HTSUS subheading 4011.92.00 provided, in pertinent part, for “new pneumatic tires, of rubber…designed for “agricultural or horticultural use,” the subheading text was changed in 2002 to read “new pneumatic tires, of rubber …Of a kind used on agricultural or forestry vehicles and machines.” CBP applies the HTSUS in accordance with the plain meaning of the statutory language. Where ambiguity exists, CBP will turn to the Explanatory Notes or other external sources such as legislative intent to aid in our interpretation. See e.g., HQ 960499, dated July 8, 1998. See also Great Western Sugar Co. v. United States, 59 CCPA 56, 452 F.2d 1394 (1971). There exists no ambiguity with respect to the language of subheading 4011.92.00. The language plainly limits the application of subheading 4011.92.00 to tires of a kind used on agricultural or forestry vehicles and machines. The subheading contains no reference to horticultural vehicles or machines. There is no evidence in the HTSUS or common definitions of “horticulture” that any reference to “agriculture” should be assumed to include “horticulture”; as noted above, the HTSUS contains many distinct references to agriculture and horticulture. Even were we to agree that dropping the reference to “horticultural use” in subheading 4011.92.00 created an ambiguity necessitating the consultation of the legislative history of this provision, Protestant makes no reference to any legislative discussion on “agricultural” versus “horticultural” use. Given that the remainder of the HTSUS maintains a distinction between agriculture and horticulture, interpreting the change in the subheading text as merging horticultural and agricultural use would contradict the plain language of heading 8432, HTSUS, and subheading 8424.81, HTSUS. Hence, we will not read into this change an attempt to merge the two concepts, in direct contradiction to the remainder of the HTSUS. 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 4011.92.00, 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). It is not in dispute that the instant tires are intended to be mounted on lawn mowers. 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. 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 instant tires ranges from roughly 3 to 12 inches. According to the TRA Yearbook, the section width of tires used on lawn and garden tractors ranges from 4 to 12 inches. In contrast, 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 1710 lbs. The instant tires are also marketed for use on lawn and garden tractors rather than for agricultural use. For example, many of the tires are designated “turf” tires. Tires from other manufacturers with the same designations, such as the C190 Smooth, M9227, C737 Rib, and the C178 Sawtooth, are sold as lawn and garden, turf, or lawn mower tires by independent retailers. The separate categorization of the two types of tires by the TRA also indicates that lawn and garden tires are not considered of a class or kind with agricultural tires by the tire industry. The tires at issue are thus 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 not classified in subheading 4011.92.00, HTSUS. With the exception of the C298 Tractor Tread Tubeless model, the tires at issue do not have a herring-bone tread and are thus classified in subheading 4011.99.85, HTSUS, as “other” pneumatic tires. This conclusion is consistent with CBP rulings on substantially similar merchandise, which declined to classify tires for lawn and garden vehicles as tires of a kind used on agricultural vehicles. See HQ H156538, dated June 13, 2012; HQ H122257, dated October 9, 2012. HOLDING: By application of GRIs 1 and 6, the lawn and garden tires imported by the protestant are classified in heading 4011, HTSUS. The C298 Tractor Tread Tubeless is classified in subheading 4011.69.00, HTSUS, which provides for “New pneumatic tires, of rubber: Other, having a "herring-bone" or similar tread: Other.” The 2009 column one, general rate of duty is Free. The remaining tires are classified in subheading 4011.99.85, HTSUS, which provides for “New pneumatic tires, of rubber: Other: Other: Other.” The 2009 column one, general rate of duty is 3.4% ad valorem duty. You are instructed to deny the protest, except to the extent that reclassification of the merchandise as indicated above results in a partial allowance. 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