CLA-2 CO:R:C:M 955369 RFA
Ms. Silvia Perez
M.G. Maher & Co., Inc.
One Canal Place, Suite 2100
New Orleans, LA 70130
RE: Backpack blower; fans; 9817.00.50; agricultural or
horticultural purposes; EN 84.14; HQs 083930, 086883, and
087076; NY 887425, modified
Dear Ms. Perez:
This is in reference to NY 887425, dated July 14, 1993,
issued to you on behalf of Poulan/Weed Eater Division of WCI, by
the Area Director of Customs in New York. In NY 887425, you
received the tariff classification of the model 442 "Poulan Pro"
gasoline powered backpack blower under the Harmonized Tariff
Schedule of the United States (HTSUS). Pursuant to section 625,
Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of
Title VI (Customs Modernization) of the North American Free Trade
Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat.
2057, 2186 (1993)(hereinafter, "section 625"), notice of the
proposed modification of NY 887425 was published on March 30,
1994, in the Customs Bulletin, Volume 28, Number 13. No comments
were received. Our decision in this matter is set forth below.
FACTS:
The model 442 "Poulan Pro" gasoline powered backpack blower,
is comprised of a 2-cycle, air-cooled engine which drives a
centrifugal blower. It has a flexible tube air outlet as well as
a multi-tube, hand-held nozzle. The merchandise is designed to
be carried on the user's back by means of shoulder straps and
backpad. According to the literature, the merchandise is
designed to sweep debris, grass, straw, leaves, small twigs or
light snow. It can also be used for fast drying wet outdoor
areas such as a patio, sidewalk, carport, etc.
In NY 887425, dated July 14, 1993, the Area Director of
Customs in New York, classified the merchandise under subheading
8414.59.80, HTSUS [1993], which provides for: "[a]ir or vacuum
pumps, air or other gas compressors and fans . . . : [f]ans:
[o]ther: [o]ther. . . ." The ruling further stated that the
subject merchandise may be eligible for duty-free treatment under
heading 9817.00.50, HTSUS, which provides for machinery,
equipment, and implements to be used for agricultural or
horticultural purposes.
ISSUE:
What is the classification of the backpack blower and does
it 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.
Heading 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
backpack blower is excluded from heading 9817.00.50, HTSUS. To
do this we must first determine under which subheading it is
classified. The Harmonized Commodity Description and Coding
System Explanatory Notes (EN) constitute the Customs Cooperation
Council's official interpretation of the HTSUS. While not
legally binding, the ENs provide a commentary on the scope of
each heading of the HTSUS and are generally indicative of the
proper interpretation of these headings. See 54 Fed.Reg. 35127,
35128 (August 23, 1989). EN 84.14, page 1163, defines "fans" as
follows:
These machines, which may or may not be fitted
with integral motors, are designed either for
delivering large volumes of air or other gases at
relatively low pressure or merely for creating a
movement of the surrounding air.
Those of the first kind may act as air extractors
or as blowers. They consist of a propeller or blade-
type impeller revolving in a casing or conduit, and
function on the principle of rotary or centrifugal
compressors.
The subject merchandise meets the definition of "fans" under
EN 84.14 because it is fitted with an integral motor and is
designed to act as a centrifugal blower. It is therefore
classifiable under subheading 8414.59.60, HTSUS [1994], which
provides for: "[a]ir or vacuum pumps, air or other gas
compressors and fans . . . : [f]ans: [o]ther: [o]ther: [o]ther
. . . ." This subheading is not excluded from classification in
heading 9817.00.50, 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 heading 9817.00.50, HTSUS, as
required by GRI 1. The backpack blower must be "machinery",
"equipment" or "implements" used for "agricultural or
horticultural purposes". Webster's II New Riverside University
Dictionary (1988), defines machinery, equipment, implements,
agriculture and horticulture as follows:
Machinery: 1. Machines or machine parts in general. 2.
The working parts of a machine. 3. A system
of related elements that operates in a
definable way.
Equipment: 1. The act of equipping or state of being
equipped. 2. Something with which one is
equipped.
Implement: 1. A tool, utensil, or instrument for doing a
task. 2. An article used to outfit or equip.
Agriculture: The science, art, and business of cultivating
the soil, producing crops, and raising
livestock.
Horticulture: The science, art, and business of cultivating
fruits, vegetables, flowers, and plants.
There is no question that the backpack blower is
"machinery". The next determination to be made is what
agricultural or horticultural pursuit is in question. According
to the literature, the backpack blowers have a variety of
utilitarian purposes, none directly related to agricultural or
horticultural purposes. The primary purpose of the merchandise
is to "sweep debris, grass, straw, leaves, small twigs or light
snow" and for "fast drying wet outdoor areas such as a patio,
sidewalk, carport, etc." Based upon this description of uses, we
find that the merchandise, while meeting the definition of
"machinery", does not meet the definitions for agricultural or
horticultural purposes. The merchandise does not meet the second
part of the test for classifying an item in heading 9817.00.50,
HTSUS. Therefore, we find that the backpack blower does not
qualify for duty-free entry as agricultural or horticultural
machinery, in Chapter 98, under the HTSUS. NY 887425 must be
modified accordingly.
HOLDING:
The submitted merchandise is classifiable under subheading
8414.59.60, HTSUS [1994], which provides for: "[a]ir or vacuum
pumps, air or other gas compressors and fans . . . : [f]ans:
[o]ther: [o]ther: [o]ther. . . ." The column 1, general rate of
duty is 4.7 percent ad valorem.
In accordance with section 625, this ruling will become
effective 60 days after publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to section 625 does
not constitute a change of practice or position in accordance
with section 177.10(c)(1), Customs Regulations [19 CFR
177.10(c)(1)].
Sincerely,
John Durant, Director
Commercial Rulings Division