CLA-2 CO:R:C:M 089408 DWS
Mr. Richard Macchione
Boston Bay Brokers Inc.
225 Friend Street
Suite 700-1
Boston, MA 02114
RE: Classification of circular salmon pens
Dear Mr. Macchione:
This in response to your letter of April 22, 1991, written
on behalf of Penobscott Salmon Co., concerning the classification
of certain salmon pens under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA).
FACTS:
The imported items are the entire salmon pens less the
actual netting used to contain the salmon. The importer sent,
along with his inquiry, literature on a similar system from the
same supplier. The pen contained in the literature is square,
whereas the imported pens are circular. Otherwise, the
specifications of the two pens are primarily the same. The
merchandise, as imported, contains the pipes, fittings, and
wooden planks. The pipe is a semi-rigid PVC, styrofoam-filled,
type construction. It is imported without the fittings attached.
The wooden walkway is in planks, and is treated with a
preservative to prevent against rot and decay caused by
saltwater. The wood is pre-cut and grooved for ease of assembly
and attachment to the system. The pens are not permanently
affixed to the waterbed, as they are kept in position by an
anchor that is tethered to the salmon pen.
ISSUE:
Whether salmon pens can be classified as agricultural
machinery under the HTSUSA and, if not, what is the proper
classification of salmon pens under the HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA 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.
Webster's Third New International Dictionary, Merriam-
Webster Inc., Springfield, MA, 1986, defines agriculture as "the
science or art of cultivating the soil, harvesting crops, and
raising livestock." However, aquaculture is defined as "a. the
art of cultivating the natural produce of water; b. the raising
or fattening of fish in enclosed ponds."
The importer argues that the salmon pens should be
classified in one of the provisions for agricultural machinery
found in Headings 8432, 8433, 8434, or 8436, HTSUSA. If the pens
are not to be classified in any of those headings, then, it is
argued, the pens should be classified under Heading 9817, HTSUSA,
providing for agricultural machinery, equipment and implements
used in agricultural pursuits.
Headings 8432, 8433, 8434, and 8436 cover the following
merchandise:
8432 Agricultural, horticultural, or forestry machinery for
soil preparation or cultivation; lawn or sports-
ground rollers.
8433 Harvesting or threshing machinery, including straw or
fodder balers; grass or hay mowers; machines for
cleaning, sorting or grading eggs, fruit or other
agricultural produce, other than machinery of Heading
8437.
8434 Milking machines and dairy machinery.
8436 Other agricultural, horticultural, forestry, poultry-
keeping or bee-keeping machinery, including
germination plant fitted with mechanical or thermal
equipment; poultry incubators and brooders.
Since these four headings mention merchandise used only for
agricultural pursuits (i.e. "cultivating the soil, harvesting
crops, and raising livestock"), then they cannot apply to salmon
pens which, quite obviously, are used for aquacultural purposes
(i.e. "the raising or fattening of fish in enclosed ponds").
However, Heading 8907, HTSUSA, provides for "other floating
structures (i.e. rafts, tanks, cofferdams, landing-stages, buoys,
and beacons)." The Explanatory Notes to Heading 8907 (p.1454),
HTSUSA, state that the heading "covers certain floating
structures not having the character of vessels." It further
states in Explanatory Note (2) that "floating tanks used to
contain live crustaceans or fish" are provided for under the
heading. Although not tanks, the salmon pens float and are used
to contain fish. This indicates to us that the salmon pens
should be classified as floating structures.
We also note New York ruling 849926, dated March 9, 1990,
which dealt with the classification of fish pens from West
Germany. In that case, the merchandise consisted of unfinished
fish net pens made from galvanized steel, but neither the netting
nor the mooring were included. The pens were not affixed to the
waterbed and they were classified under subheading 8907.90.0090,
HTSUSA.
Since the salmon pens cannot be classified as agricultural
machinery used for agricultural purposes, and because they are
floating structures used to contain fish, they are classified
under subheading 8907.90.00, HTSUSA.
HOLDING:
The salmon pens are classifiable under subheading
8907.90.00, HTSUSA, providing for "other floating structures:
other: other." The general, column one rate of duty for items
classified under this subheading is 3.8 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division