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HQ 952868

NOVEMBER 26, 1993

CLA-2:CO:R:C:M 952868 JAS


TARIFF NO.: 8424.89.00

District Director of Customs
610 South Canal Street
Chicago, IL 60607

RE: PRD 3901-92-100453; Mechanical Appliance for Spraying Liquids, High Pressure Cleaner, Agricultural Sprayer/ Cleaner, Subheading 8424.81.10, Other Sprayer; Principal Use in Agricultural Purposes, Additional U.S. Rule 1(a); HQ 088999; Machinery, Equipment and Implements to be Used for Agricultural or Horticultural Purposes, Heading 9817.00.50, NY 838018

Dear Sir:

This is our decision on Application for Further Review of Protest No. 3901-92-100453, filed by counsel on behalf of K.E.W. Cleaning Systems, (U.S.A.), Inc., against your action in classifying certain mechanical sprayers from Denmark. The entry under protest was liquidated on December 6, 1991, and this protest timely filed on March 5, 1992.


The sprayer/cleaner models in issue are as follows:

2802V 25A2K 4003K 4503KB
1502V 1002K 5203K Professional
3803V 1702K 1702KSA Contractor
5003V 2903K 4003KSA

The sprayers consist of the following components: (1) a high pressure pump powered either by an electric motor or an air cooled internal combustion engine; (2) inlet connection to connect cold water supply to the sprayer; (3) where applicable, an electric cable to connect the electric motor to the power supply; (4) a high pressure hose and spray wand with flat jet nozzle; and (5) a boiler system for hot water models. All components are in a common housing mounted on a wheeled frame. - 2 -

The merchandise was entered under the duty-free provision for agricultural or horticultural sprayers (except self-contained sprayers having a capacity not over 20 liters), in subheading 8424.81.10, Harmonized Tariff Schedule of the United States (HTSUS). Counsel maintains that high pressure cleaning to remove manure from barns and stalls for sanitary purposes, and for cleaning agricultural machinery is a legitimate agricultural use, and that these units are principally marketed to the agricultural industry for these purposes.

You liquidated the entry under protest under provision for other mechanical appliances for spraying liquids or powders, in subheading 8424.89.00, HTSUS. In your opinion the washing of barns and stalls and agricultural machinery has not been shown to be an agricultural use.

The provisions under consideration are as follows:

8424 Mechanical appliances for projecting, dispersing or spraying liquids or powders

Other appliances:

8424.81.10 Agricultural or horticultural: Sprayers (except sprayers, self-contained, having a capacity not over 20 liters)...Free

8424.89.00 Other...3.7 percent


Whether high pressure cleaning is, per se, an agricultural or horticultural pursuit; whether the units under protest, or any of them, are principally used in such pursuits.


Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

Additional U.S. Rule of Interpretation 1(a), HTSUS, states in part that a classification controlled by use is to be - 3 -
determined by the use in the United States at, or immediately prior to, the date of importation, of goods of that class of kind to which the imported goods belong, and the controlling use is the principal use.

Regarding the first issue, not all implements, apparatus or equipment used on a farm are necessarily "agricultural or horticultural" for tariff purposes. Some implements have design features that dedicate them specifically to agricultural or horticultural applications. Devices specifically designed and used for spraying insecticides, pesticides or disinfectants in agricultural or horticultural environments have a rational and obvious relationship to the production of food or clothing. We have routinely held these to be agricultural or horticultural implements. In this case, we have held that the spray cleaning/ washing of barns or stalls to remove manure and other noxious contaminants for sanitary reasons is a legitimate agricultural pursuit. HQ 088999, dated October 15, 1991. However, it is important to note that under the HTSUS's predecessor tariff code, the Tariff Schedules of the United States (TSUS), the test for agricultural sprayers was whether they were suitable for such use. Under the HTSUS, however, the test is principal use; that is, the use which exceeds each other single use of the goods.

Counsel maintains that the subject sprayers meet the physical description of agricultural sprayers of subheading 8424.81.10. Counsel also asserts through brochures and literature that nearly 50 percent of K.E.W.'s advertising is geared to the agricultural or horticultural community. Moreover, a summary of end use data gleaned from warranty cards at or immediately before the date of importation, returned to K.E.W. by actual purchasers, purports to establish principal use in agricultural or horticultural pursuits. In our opinion, this information is indicative of the actual use of protestant's sprayers, but is not dispositive of the issue of principal use.

Finally, in a submission, dated November 23, 1993, counsel offers the results of a recent survey conducted by the Cleaning Equipment Trade Association (CETA), as evidence that these sprayers are principally used in agricultural or horticultural pursuits. Initially, we note that of the 17 CETA members queried only 10 responded. Counsel notes that 21.5 percent of the respondents' total dollar sales volume - the single highest percentage - went to the agricultural/horticultural industry, with the remainder divided by lesser percentages among 7 different classes of end users. This, he concludes, is evidence of principal use. In our opinion, this data can reasonably be interpreted as evidence of 78.5 percent non-agricultural/ horticultural use. Moreover, in an affidavit counsel previously submitted to support the principal use issue, William G. Lindsay, Executive Director of CETA, states that his organization has over 300 members. It is therefore difficult to base any conclusions - 4 -
on the submitted data where such a substantial number of potential end users are unreported. More importantly, because in a principal use context it is the time period at or immediately prior to the date of importation that must be examined, results of a survey begun and concluded in 1993 have little or no probative value with respect to a 1991 entry.

Heading 9817.00.50, HTSUS, accords free entry to machinery, equipment and implements to be used for agricultural or horticultural purposes. This is a provision governed by actual use. In order to qualify for free entry under this provision use of the sprayers in agriculture or horticulture must be intended at the time of importation, the sprayers must be so used, and proof of such use must be furnished as prescribed by Section 10.133, Customs Regulations. NY 838018.


The protest should be denied except to the extent that compliance with the requirements of heading 9817.00.50 results in a full or partial allowance.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Lexis, the Freedom of Information Act and other public access channels.


John Durant, Director
Commercial Rulings Division

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