CLA-2 CO:R:C:M 089936 NLP
Mr. Richard Macchione
Boston Bay Brokers Inc.
225 Friend Street
Suite 700-1
Boston, MA 02114
RE: HRL 089408; salmon pens; Heading 8907; Heading 9817;
agricultural or horticultural machinery, equipment and
implements; aquaculture
Dear Mr. Macchione:
This is in response to your letter dated July 19, 1991, in
which you requested a reconsideration of Headquarters Ruling
Letter (HRL) 089408, dated June 3, 1991, which concerned the
classification of salmon pens under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA).
FACTS:
HRL 089408, dated June 3, 1991, dealt with the
classification of salmon pens that are used to contain salmon.
The merchandise, as imported, contains the pipes, fittings and
wooden planks comprising an entire salmon pen, less the actual
netting used to contain the salmon. HRL 089408 determined that
the salmon pens were not classified in headings 8432, 8433, 8434
or 8436 as these headings mention merchandise used only for
agricultural pursuits (i.e. "cultivating the soil, harvesting
crops, and raising livestock) and the salmon pens are used for
aquacultural purposes. HRL 089408 held that since the salmon
pens were not agricultural machinery used for agricultural
purposes and because they were floating structures used to
contain fish, they were classified in subheading 8907.90.00,
HTSUSA, which provides for other floating structures, other,
other.
It is your position that salmon pens are used for an
aquacultural pursuit and that aquaculture is a form of
agriculture. Therefore, the salmon pens should be classified in
subheading 9817.00.50, HTSUSA, which provides duty free treatment
for agricultural machinery, equipment and implements used in
agricultural pursuits. In support of this position you reiterate
arguments made in your letters of March 5, 1991, and April 22,
1991, which are based on dictionary definitions and an excerpt of
Title 29, Part 780 of the Code of Federal Regulations, Exemptions
Applicable to Agriculture, Processing of Agricultural Commodities
and related subjects under the Fair Labor Standards Act of 1938,
as amended, Section 780.109 and Section 780.120.
ISSUE:
Are the salmon pens "agricultural" and thus entitled to
entry free of duty in subheading 9817.00.50, HTSUSA.
LAW AND ANALYSIS:
Heading 9817.00.50, HTSUSA, grants duty free treatment for
"Machinery, equipment and implements to be used for agricultural
or horticultural purposes..." To fall within this special
classification a three part test must be met. First, the
articles must not be among the long list of exclusions to
heading 9817, HTSUSA, under Section XXII, Chapter 98, Subchapter
XVII, U.S. Note 2, HTSUSA. 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
merchandise must meet the conditions required under 19
C.F.R.10.133. See HRL 086883, dated May 1, 1990, and HRL 087076,
dated June 14, 1990.
The first part of the test is to determine whether the
salmon pens are excluded from heading 9817, HTSUSA. The salmon
pens are classified in subheading 8907.90.00, HTSUSA. This
subheading is not excluded from classification in heading 9817,
HTUSA, by operation of Section XXII, Chapter 98, Subchapter XVII,
U.S. Note 2(y). The first part of the test is satisfied.
The second part of the test calls for the salmon pens to be
included within the terms of the heading as required by GRI 1.
The salmon pens 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 your
position that fish farming, the pursuit in which these salmon
pens will be used, is agricultural in nature.
Inasmuch as subheading 9817 does not provide a definition
for agriculture, that tariff term must be considered in
accordance with its common and commercial meaning. Nippon Kogaku
(USA) Inc. v. United States, 673 F.2d 380 (1982). To ascertain
the common [and commercial] meaning [of a tariff term], in
addition to relying upon its own understanding of the terms used,
the courts may consult dictionaries, lexicons, the testimony of
record, and other reliable sources of information as an aid to
its knowledge. Pistorini & Co., Inc. v. United States, 461 F.
Supp. 331,332 (1978).
In determining that the salmon pens were not used for
agricultural pursuits, HRL 089804 relied on the definition of
agriculture as stated in Webster's Third New International
Dictionary. Agriculture was defined as "the science or art of
cultivating the soil, harvesting crops, and raising livestock.
Aquaculture was defined as "a. the art of cultivating the natural
products of water; b. the raising or fattening of fish in
enclosed ponds." These definitions demonstrate that agriculture
and aquaculture are two distinct pursuits.
HRL 039935, dated June 2, 1974, dealt with the
classification of a man-made woven fabric to be used for mussel
aquaculture. While discussing the classification of the fabric,
HRL 039935 stated that " we are not convinced that 'sea farming'
can be considered an agricultural pursuit for tariff purposes."
In your submission you make reference to Title 29, Part 780
of the Code of Federal Regulations, Exemptions applicable to
Agriculture, Processing of Agricultural Commodities and related
subjects under the Fair Labor Standards Act of 1938, as amended.
Section 780.109 states that "fish farming falls within the scope
of the meaning of 'farming in all its branches' and employees
engaged in such operations would be employed in agriculture."
Section 780.120 confirms that for the purpose of this bulletin,
fish farming is considered agriculture, but this section also
states that "Fish are not 'livestock'."
Though you claim that the salmon pens are used for fish
farming and that aquaculture is a form of agriculture, our
review of the definitions and cases affirms that agricultural
pursuits are different from aquacultural pursuits. We cannot
agree with your interpretations of the dictionary definitions.
Furthermore, our classification of an article as being used for
agricultural pursuits is not dependent upon or in any way related
to that of the Department of Labor or any other government
agency. (See, Marine Products Co. v. United States, 42 Cust. Ct.
154, 155, C.D. 2080 (1959), which states that "[c]haracterization
of imported merchandise by governmental agencies for other than
tariff purposes does not determine tariff classification".)
Therefore, the second part of the test for classifying an item in
subheading 9817.00.50, HTSUSA, has not been met. It is our
position that the salmon pens are not used for agricultural
purposes and are not classified in subheading 9817.00.50, HTSUSA.
HOLDING:
The salmon pens are classified in subheading 8907.90.00,
HTSUSA and are not eligible for duty free treatment under
subheading 9817.00.50, HTSUSA, and we affirm HRL 089804.
Sincerely,
John Durant. Director
Commercial Rulings Division