CLA-2 CO:R:C:M 952995 RFA
District Director of Customs
P.O. Box 1490
St. Albans, VT 05478
RE: Protest No. 0201-92-100274; Maple Syrup Evaporator;
9817.00.50; agricultural or horticultural purposes; HQ
556908; HQ 089242; HQ 083930; HQ 086883; HQ 087076
Dear District Director:
The following is our decision regarding the Protest and
Request for Further Review No. 0201-92-100274, dated May 5, 1992.
The protest was filed against your liquidation of the entry of
certain merchandise which was classified in subheading
8419.89.50, Harmonized Tariff Schedule of the United States
(HTSUS).
FACTS:
The merchandise consists of evaporating equipment which is
used on farms to produce maple syrup from the sap of the sugar
maple tree. The sap is collected and then circulated through
evaporating pans in order to boil off water. This process is
continued until the consistency of syrup has been reached.
ISSUE:
Does the maple syrup evaporator qualify for duty-free entry
as agricultural or horticultural implements, in Chapter 98, under
the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.
Subheading 9817.00.50, HTSUS, grants duty free treatment for
"[m]achinery, equipment and implements to be used for
agricultural or horticultural purposes. . .". This is an actual
use provision. See HQ 083930 (May 19, 1989). To fall within
this special classification, a three part test must be met.
First, the subject merchandise must not be excluded from the
heading under Section XXII, Chapter 98, Subchapter XVII, U.S.
Note 2, HTSUS. Secondly, the terms of the headings must be met
in accordance with GRI 1, which provides that classification is
determined according to the terms of the headings and any
relative section or chapter notes. Thirdly, the article must
comply with the actual use regulations under section 10.131
through 10.139, Customs Regulations (19 CFR 10.131 through
10.139). See HQ 086883 (May 1, 1990); HQ 087076 (June 14, 1990);
HQ 089936 (November 15, 1991).
The first part of the test is to determine whether the maple
syrup evaporator is excluded from Heading 9817, HTSUS. To do
this we must first determine under which subheading it is
classified. In HQ 089242 (August 13, 1991), we held that a sap
evaporator is classifiable under subheading 8419.89.50, HTSUS,
which provides for:
[m]achinery. . .whether or not electrically heated, for
the treatment of materials by a process involving a
change of temperature such as heating, cooking, . . .
evaporating . . . other than machinery or plant of a
kind used for domestic purposes. . .[o]ther machinery,
plant or equipment:. . . [o]ther: . . .[o]ther. . .
This subheading is not excluded from classification in Heading
9817, HTSUS, by operation of Section XXII, Chapter 98, Subchapter
XVII, U.S. Note 2.
The second part of the test calls for the merchandise to be
included within the terms of subheading 9817.00.50, HTSUS, as
required by GRI 1. The maple syrup evaporator must be
"machinery", "equipment" or "implements" used for "agricultural
or horticultural purposes". For this part of the test, the
initial determination to be made is what agricultural or
horticultural pursuit is in question. It is the importer's
position that maple syrup production on a family farm, which can
be traced back to colonial times, is an agricultural pursuit.
We do not dispute that the collecting of maple sap is an
agricultural pursuit. However, we have consistently held that
the production of maple syrup is not an agricultural pursuit. See
HQ 089242 and HQ 556908 (September 18, 1992). In HQ 089242, we
stated that the
issue to be resolved is whether. . .the evaporator [is]
eligible, upon certification of actual use, for duty-
free entry under subheading 9817.00.50, HTSUSA. In
Headquarters Ruling Letter 073168 dated June 6, 1984,
Customs held that these items were not eligible for
duty-free treatment under item 870.40, TSUS, the
predecessor provision to subheading 9817.0050, HTSUSA.
It remains our opinion that the processing of maple sap
into maple syrup . . . by the evaporator, though
performed on a farm, is not an agricultural or
horticultural activity. Unlike cleaning, sorting and
grading of agricultural products, the processing of sap
into maple syrup is more than a simple preparation of
the product for market. It changes the agricultural
product, maple sap, to maple syrup. Consequently, it
is our opinion that the . . . evaporator [does] not
qualify for duty-free treatment under subheading
9817.00.50, HTSUSA.
This ruling was affirmed in HQ 556908, in which we held that the
holding in HQ 089242 continues to be our position as to the
classification of the subject evaporating equipment.
As defined by Webster's II New Riverside University
Dictionary, page 87, agriculture is the "science, art, and
business of cultivating the soil, producing crops, and raising
livestock." We believe the processing of a raw agricultural
product (maple sap) into a finished product (maple syrup) goes
beyond the pursuit of agriculture. Therefore, the merchandise
does not meet the second part of the test for classifying an item
in subheading 9817.00.50, HTSUS. We find that the evaporator
does not qualify for duty-free entry as agricultural or
horticultural implements, in Chapter 98, under the HTSUS.
The importer argues that Congress intended only to exclude
those items listed in Section XXII, Chapter 98, Subchapter XVII,
U.S. Note 2. The importer supports his argument by stating that
Congress only required end use certification in order to avoid
the importation of non-farm machinery, equipment, or implements
under the duty-free entry provision.
As the court stated in Rico Import Co. v. United States,
Slip Op. 92-146, dated August 27, 1992, "[i]t is well settled
that tariff acts must be construed to carry out the intent of the
legislature." See Nippon Kogaku (USA), Inc. v. United States, 69
CCPA 89, 92, 673 F.2d 380, 382 (1982)(citing Sandoz Chem. Works,
Inc. v. United States, 43 CCPA 152, 156, C.A.D. 623 (1956)). The
first place to look to establish the intent of Congress is the
language of the statute itself. Consumer Prod. Safety Comm'n v.
GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).
The language of the tariff provision, subheading 9817.00.50,
HTSUS, grants duty-free treatment for "[m]achinery, equipment and
implements to be used for agricultural or horticultural purposes
. . ."(emphasis added). It is clear that Congress required that
the item being imported be used for a specific agricultural
purpose. We incorporated this Congressional intent in the second
part of the three part test stated above by requiring that an
agricultural purpose must be found. We find that this test
reflects the intent of Congress.
The importer believes that our decision is based upon the
assumption that Customs alone, among all other government
agencies, considers maple syrup as a non-agricultural product.
However, "it is well established that statutes, regulations and
administrative interpretations [by other government agencies]
relating to 'other than tariff purposes' are not determinative of
customs classification disputes." Amersham Corp. v. United
States, 5 CIT 49, 56, 564 F.Supp. 813 (1983). See also United
States v. Mercantil Distribuidora, S.A., 43 CCPA 111, C.A.D. 617
(1956); Swift & Co. v. United States, 27 CCPA 181, C.A.D. 83
(1939). We believe that the proper issue here is whether the
processing of the maple sap into maple syrup goes beyond the
pursuit of agriculture. As discussed above, we find that the
processing of the sap into syrup is more than a simple
preparation of the product for market. Because we find that this
process is not an agricultural pursuit, the evaporator is
ineligible duty-free entry.
HOLDING:
The submitted merchandise is classifiable under subheading
8419.89.50, HTSUS, which provides for: [m]achinery. . .whether or
not electrically heated, for the treatment of materials by a
process involving a change of temperature such as heating,
cooking, . . . evaporating . . . other than machinery or plant of
a kind used for domestic purposes. . .[o]ther machinery, plant or
equipment:. . . [o]ther: . . .[o]ther. . ." The column 1,
general rate of duty is 4.2 percent ad valorem.
The protest should be denied in full. A copy of this
decision should be attached to Customs Form 19 and provided to
the protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division