CLA-2 CO:R:C:M 950674 NLP
Ms. Carolyn Parker
Office Manager
Aquafarms Canada Limited
Feversham, Ontario, Canada NOC ICO
RE: Heading 9817; agricultural or horticultural machinery,
equipment and implements; aquaculture; subheading 3926.90.90
Dear Ms. Parker:
This is in response to your letter of September 18, 1991, in
which you requested that we reclassify tanks used for growing
fish as agricultural machinery, equipment or implements. The
tanks would then be classified in subheading 9817.00.50,
Harmonized Tariff Schedule of the United States (HTSUS), and
would be entitled to entry free of duty.
FACTS:
The products which are the subject of this request are tanks
that are semi square in shape and are made of fiberglass
reinforced plastics. Style 2000-7 has a full capacity of 516
gallons and a working level of 375 gallons. Style 3750-7 has a
full capacity of 3510 gallons and a working level of 2633
gallons. These tanks are used for the purpose of growing fish
which will either be consumed or stocked into lakes. The tanks
are designed to operate by having sufficient water flow through
them to provide adequate oxygen for the fish to survive. It is
your position that the tanks are used for agricultural purposes.
New York Ruling Letter (NYRL) 837128, which was issued to
you on March 13, 1989, classified these tanks in subheading
3926.90.90, HTSUS, which provides for other articles of plastics,
other.
ISSUE:
Are the subject tanks, which are used for growing fish that
will either be consumed or stocked into lakes, considered
"agricultural" and, therefore, classified as machinery, equipment
or implements used for agricultural pursuits in subheading
9817.00.50, Harmonized Tariff Schedule of the United States
(HTSUS).
LAW AND ANALYSIS:
Subheading 9817.00.50, HTSUS, 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, HTSUS, 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 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 tanks
are excluded from heading 9817, HTSUS. The tanks are classified
in subheading 3926.90.90, HTSUS. 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
first part of the test is satisfied.
The second part of the test calls for the tanks to be
included within the terms of the heading as required by GRI 1.
The tanks 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.
Inasmuch as heading 9817, HTSUS, 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 Webster's Third New International Dictionary
agriculture is defined as "the science or art of cultivating the
soil, harvesting crops, and raising livestock. Aquaculture is
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."
Moreover, HRL 089936, dated November 15, 1991, dealt with the
issue of whether salmon pens were classified in subheading
9817.00.50, HTSUS. HRL 089936 found that salmon pens, which were
used to hold salmon, were used for an aquacultural pursuit, not
an agricultural pursuit, and they were not classifiable in
subheading 9817.00.50, HTSUS.
It is our position that the subject tanks are used for
aquacultural pursuits; the cultivation of fish. Our review of
the definitions and cases affirms that agricultural pursuits are
different from aquacultural pursuits. Therefore, the second part
of the test for classifying an item in subheading 9817.00.50,
HTSUS, has not been met. Thus, the tanks are not classified as
agricultural equipment, machinery or implements in subheading
9817.00.50, HTSUS.
HOLDING:
The tanks are classified in subheading 3926.90.90, HTSUS and
are not entitled to entry free of duty pursuant to subheading
9817.00.50, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division