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HQ 954247


August 18, 1993

CLA-2 CO:R:C:M 954247 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.00.50

Mr. Louis V. Sharp
Breuil/Sharp Automation, INc.
2330-A Centennial Drive
Gainesville, Georgia 30504

RE: NY 883576 modified; hatcher tray and chick box destackers and stackers; agricultural or horticultural machinery, equipment and implements; HRL 083930; three part test; 19 CFR 10.131- 10.139

Dear Mr. Sharp:

This is in reference to your letter dated May 11, 1993, to Customs in New York, requesting reconsideration of New York (NY) 883576 dated March 31, 1993, concerning the tariff classification of hatcher tray and chick box destackers and stackers under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was referred to this office for reply.

FACTS:

The articles which are the subject of this reconsideration are the hatcher tray and chick box destackers and stackers (destackers and stackers) which, in NY 883576, were classified under subheading 8428.90.00, HTSUS, which provides for "Other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics)...Other machinery...." You contend that the destackers and stackers are classifiable under subheading 9817.00.50, HTSUS, which provides for "Machinery, equipment and implements to be used for agricultural or horticultural purposes."

You state that the destackers and stackers mechanically stack and destack trays and boxes for the purpose of hatching and transporting baby chickens and turkeys. The articles are described as follows:

Hatcher tray destacker: a machine which destacks trays and automatically places the trays onto the separator unit. The hatcher trays contain chicks or turkeys that were recently hatched from their shells.

Hatcher tray stacker: a machine which removes the hatcher trays from the separator and washer system and restacks them onto dollies in order that eggs can be placed into them for the next series of chicks to be hatched.

Chick box destacker: a machine which destacks boxes which hold chicks and turkeys and which are used to store and transport the small birds out to the farm where they are raised.

Chick box stackers: a machine which automatically stacks the boxes together after the chick or turkeys have been placed into them. Once stacked, the boxes are loaded into trucks and transported out to the farm.

ISSUE:

Are the destackers and stackers classifiable under subheading 9817.00.50, HTSUS, as machinery, equipment and implements to be used for agricultural or horticultural purposes?

LAW AND ANALYSIS:

Any item that is imported into the U.S. will receive a tariff classification from within the first 97 chapters of the HTSUS, the international portion of the tariff that is utilized by all countries which have adapted the tariff. Chapters 98 and 99, HTSUS, provide an additional U.S. classification that grants special treatment to qualifying articles.

The tariff provision for machinery, equipment and implements to be used for agricultural or horticultural purposes, subheading 9817.00.50, HTSUS, is an actual use provision. See, Headquarters Ruling Letter (HRL) 083930 dated May 19, 1989. To fall within this special classification the following three part test must be met:

(1) The article in question must not be excluded from the heading under Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, HTSUS.

(2) The terms of the headings must be met in accordance with General Rule of Interpretation (GRI) 1, HTSUS, which provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

(3) The article must comply with the actual use provision requirements of sections 10.131-10.139, Customs Regulations (19 CFR 10.131-10.139).

The first part of the test is that the articles not be excluded from classification by Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, HTSUS. As stated in NY 883576, the destackers and stackers are classified under subheading 8428.90.90, HTSUS. This subheading is not excluded from classification under heading 9817, HTSUS, by operation of Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, HTSUS.

The second part of the test calls for the destackers and stackers to be included within the terms of subheading 9817.00.50, HTSUS, as required by GRI 1, HTSUS. The destackers and stackers must be "machinery", "equipment" or "implements" used for "agricultural or horticultural purposes." Webster's II New Riverside University Dictionary (1988), defines machinery, equipment, implement and agricultural as follows:

Machinery: machines or machine parts in general...the working parts of a machine...a system of related elements that operates in a definable way....

Equipment: the act of equipping or state of being equipped...something with which one is equipped....

Implement: a tool, utensil, or instrument for doing a task...an article used to outfit or equip....

Agriculture: the science, art, and business of cultivating the soil, producing crops, and raising livestock...farming.

Based on the submitted information, the stackers and destackers meet the definition of machinery, equipment and implements to be used for agricultural purposes. The destackers and stackers are machines which perform the functions of destacking or stacking and moving the trays and boxes from one location to another. The destackers and stackers are used to hatch and transport baby chickens and turkeys; they are used in the poultry industry to raise, care and keep livestock. The raising of livestock is an acceptable agricultural use. Therefore, the stackers and destackers meet the requirements of the second part of the test.

The third part of the test is that the requirements of 19 CFR 10.131-10.139), be met. If these requirements are satisfied, the third part of the test will be met.

HOLDING:

The hatcher tray and chick box destackers and stackers are eligible for duty free treatment under subheading 9817.00.50, HTSUS, provided the actual use requirements of section 10.131-10.139, Customs Regulations (19 CFR 10.131-10.139), are satisfied. NY 883576 is modified as set forth in this ruling.

Sincerely,

John Durant, Director
Commercial Rulings Division

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