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HQ 950674


January 30, 1992

CLA-2 CO:R:C:M 950674 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.90

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

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