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HQ 955502

MARCH 31 1994

CLA-2:CO:R:C:M 955502 JAS


TARIFF NO.: 8429.59.10

Mr. L.J. Stout
Massey-Ferguson Industrial Machinery, Inc. 1750 Belle Meade Court, Suite C
Lawrenceville, GA 30243

RE: Backhoe-Loaders, MF Models 750, 860, 965; Tractors Suitable for Agricultural Use, Heading 8701; Chapter 87, Note 2, HQ 951434; Shovel Loaders, Backhoes, Composite Machines, Heading 8429, Section XVI, Note 3; HQ 953136

Dear Mr. Stout:

In your letter of December 1, 1993, you inquire as to the tariff classification of the Massey-Ferguson (MF) vehicle models 750, 860 and 965 from the UK, which you refer to as industrial tractor-backhoe-loaders. Brochures were submitted.


You identify the vehicles in issue as tractor-backhoe- loaders. However, literature depicting the MF models 750, 860 and 965 identifies them as backhoe loaders for the construction and building industries. All are wheeled vehicles with enclosed cabs. Each has a front-mounted bucket and rear shovel operating from an articulated boom incorporated into a fully integrated frame. This configuration apparently dedicates them for earthmoving and excavating purposes. All are 9 ft. 1 in. high at the cab, 7ft. 10 in. wide, and weigh between 15,913 and 17,191 lbs. The three models have either 4 or 5 speed all wheel transmissions, forward and reverse speeds, and are powered by 4 cylinder turbocharged engines generating from 78 to 90 hp.

You maintain that the models 750 and 860 directly replace the MF models 50H and 50HX which Customs previously classified free of duty as tractors suitable for agricultural use, in subheading 8701.90.10, Harmonized Tariff Schedule of the United States (HTSUS). HQ 951434, dated June 23, 1992. That ruling classified the MF 60HX, now the model 965, under subheading 8701.90.50, HTSUS, a provision for other tractors. You state the new models represent improvements over the previous models that - 2 -
constitute only commercial enhancements, to promote salability and to stay current with the technology relating to engine and tool working performance, and that the basic tractor base and overall capabilities, as well as the scope of use, remain the same.

The provisions under consideration are as follows:

8429 Self-propelled bulldozers, angledozers, graders, levelers, scrapers, mechanical shovels, excavators, shovel loaders, tamping machines and road rollers:

8429.51 Front-end shovel loaders:

8429.51.10 Wheel-type...2 percent

8429.59 Other:

8429.59.10 Backhoes, shovels, clamshells and draglines ...2 percent

8429.59.50 Other...2.5 percent

8701 Tractors (other than tractors of heading 8709):

8701.90 Other:

8701.90.10 Suitable for agricultural use...Free

8701.90.50 Other...2.2 percent


Whether the MF model 750, 860 and 965 wheeled vehicles are tractors; if they are, whether they are suitable for agricultural use.


Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. - 3 -

Initially, articles of section XVII are excluded from section XVI. Section XVI, Note 1(l), HTSUS. Therefore, if the MF wheeled vehicles in issue here are tractors of heading 8701 they cannot be classified in heading 8429.

For purposes of chapter 87, the term "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. Chapter 87, Note 2, HTSUS.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the Customs Cooperation Council's official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the notes should always be consulted. See T.D. 89-80.

Relevant ENs at p. 1424, state that heading 87.01 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. The ENs continue on p. 1425, under the heading TRACTORS FITTED WITH OTHER MACHINERY, "As a general rule, propelling bases forming an integral part of a machine designed for handling, excavating, etc., can be distinguished from the tractors of [heading 87.01] 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. For instance, the propelling bases not covered by [heading 87.01] incorporate robust elements (such as supporting blocks, plates or beams, platforms for swivelling cranes) forming a part of or fixed, generally by welding, to the chassis-body framework to carry the actuating equipment for the working tools."

The evidence of record indicates that the bucket loader and rear mounted backhoe of the MF vehicles in issue are standard equipment, incorporated into a fully integrated frame. It is difficult to argue, therefore, that these vehicles are constructed essentially for hauling or pushing. Under the heading TRANSMISSION the literature describes a design for shock- free transition of power, ensuring maximum traction and excellent loader bucket penetration. Under the heading AXLES, the literature describes a heavy duty final drive outboard planetary - 4 -
cast axle beam insuring maximum ground contact and traction, which together with the 50 degree steer angle, achieves a tight turning radius for overall maneuverability. These are design characteristics common to graders and excavators, not tractors. Under the heading HYDRAULICS the discussion relates entirely to the loader/backhoe operation.

It is clear that these vehicles are designed to withstand vertical stresses associated with digging and lifting, rather than the horizontal or tractive stresses associated with pushing or pulling. The specifications omit mention of PTOs or 3-point hitch, features commonly associated with tractors. The described characteristics, read in conjunction with the cited ENs to heading 8701 that exclude from that heading propelling bases specially designed or constructed to form an integral part of a machine performing a function such as lifting, excavating, leveling, etc., compel a finding that the MF vehicles in issue are not "tractors" as that term is defined in the HTSUS. This precludes the application of heading 8701.

Relevant ENs state that heading 8429 covers a number of earth digging, excavating or compacting machines which are explicitly cited in the heading and which have in common the fact that they are self-propelled. Among those listed at (F) on p. 1202 are Self-propelled shovel loaders, wheeled or crawler machines with front-mounted buckets which pick up material through motion of the machine, transport and discharge it. Some shovel-loaders are able to dig into the soil. This is achieved as the bucket, when in the horizontal position, is capable of being lowered below the level of the wheels or tracks. These ENs describe the machines in issue.

Because these vehicles perform functions appropriate to shovel loaders and to backhoes, they are composite machines. Section XVI, Note 3, HTSUS. Such machines are to be classified as if consisting of that component or as being that machine which performs the principal function. In this instance, the evidence of record does not establish a principal function. In such cases, classification shall be in the provision which occurs last in numerical order among those which equally merit consideration. GRI 3(c), HTSUS. Applying Rule 3(c) at the subheading level, we find that the MF vehicles in issue are provided for in subheading 8429.59. Customs routinely classifies wheel-type backhoe loaders in subheading 8429.59.10. HQ 953136, dated February 5, 1993. - 5 -


Under the authority of GRI 1, the MF vehicle models 750, 860 and 965 are provided for in heading 8429. They are classifiable in the provision for backhoes, shovels, clamshells and draglines, in subheading 8429.59.10, HTSUS.

Pursuant to section 625(c)(1) of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), Customs intends to modify HQ 951434, dated June 23, 1992, to reflect the views expressed in this decision. Notice to interested parties of this proposed modification will be published in the Customs Bulletin. However, before modifying HQ 951434, Customs will consider any written comments timely received.

Claims for detrimental reliance under section 177.9, Customs Regulations (19 CFR 177.9), will not be entertained for actions occurring on or after the date of publication of this notice.


John Durant, Director
Commercial Rulings Division

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