HQ 082779: Decision on Application for Further Review of Protest No. 2904-7-000280, November 10, 1987

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 082779

                                   October 31, 1988

          CLA-2 CO:R:C:G 082779 AS

          CATEGORY:  Classification

          TARIFF NO.:  Item No. 660.00 664.08 TSUS

          District Director of Customs
          Federal Building, Room 198
          N.W. Broadway & Glisan Streets
          Portland, Oregon 97209

          RE:  Decision on Application for Further Review of Protest
               No. 2904-7-000280, November 10, 1987


          Dear Sir:

                This protest was filed against your decision in the
          liquidation of entry No. 331-3869587-0 of August 14, 1987,
          liquidated on October 16, 1987.  Protest was timely filed and
          forwarded to Headquarters for further review on the basis that
          the protest involves "questions which have not been the subject
          of a Headquarters ruling or court decision."

          FACTS:

                The merchandise involved is the McConnel Basic Digger, and
          a 16 inch bucket, a 13 inch bucket, a 140 MM trenching bucket and
          a 1.2 M RH head for use with the digger.  The M190 is a
          hydraulically operated backhoe.  It is a fully self contained
          device which is designed to be attached to the PTO of 17 hp
          compact tractors.  Protestant asserts that the equipment should
          be classified under item 666.00, Tariff Schedules of the United
          States (TSUS), as agricultural implements rather than your
          classification as excavating and levelling machinery and parts
          under item 664.08, TSUS.

          ISSUE:

                The issue is whether the articles are classifiable as
          agricultural implements.

          LAW AND ANALYSIS:

                Protestant makes two arguments in favor of classification
          as an agricultural implement under item 666.00, TSUS.  It is
          claimed that the entered equipment is an entirety, and the
          equipment is too small for industrial application.












                                        - 2 -

                Both claims must fail.  The doctrine of entireties does not
          apply where the imported article is not imported with the article
          with which it is claimed to be an entirety.  United States v.
          Baldt Anchor, Chain & Forge Division of the Boston Metals Co. et
          al., 59 CCPA 122, C.A.D. 1051, 459 F.2d 1403 (1972).  The
          equipment now under consideration was imported separately from
          the compact tractor.

                A machine must be shown to be chiefly used for agricultural
          purposes to qualify for classification under item 666.00, TSUS.
          Staalkat of America, Inc. v. United States, 56 CCPA 86, C.A.D.
          959, 417 F.2d 789 (1969).  Chief use is that use which exceeds
          all other uses combined.  General Headnote 10(e)(i), TSUS.
          Protestant has not shown the chief use of the articles.  The
          unsupported statement that the equipment is too small for indus-
          trial applications falls far short of the proof necessary to show
          chief use.  In fact, the literature submitted indicates that the
          equipment is ideally suited for use by contractors for small
          earth moving jobs such as burying water and gas supply lines and
          preparing and finishing construction sites.

          HOLDING:

                The equipment is properly classifiable under item 664.08,
          TSUS.  You should deny the protest in full.  A copy of this
          decision should be attached to the Form 19 Notice of Action to be
          sent to the protestant.

                                        Sincerely,





                                        John Durant, Director
                                        Commercial Rulings Division
                                  

























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