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HQ 559385




MAY 20, 1996

CLA-2 RR:TC:MM 559385 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.25, 8543.80.95, 8546.90.00

Port Director of Customs
555 Battery St.
San Francisco, CA 94111

RE: PRD 2809-95-100594; Power Fence, Electric Fence for Enclosing and Controlling Wild and Domestic Animals; Controller/Energizer for Dispensing Low Impedance Electrical Impulse, Wire, Fence Posts, Connectors, Insulators, Switches, Gate Handles Reels; Grounding System for Returning Electrical Impulse to Controller; Machinery, Equipment, Implements to be Used for Agricultural or Horticultural Purposes; 9817.00.50, Parts, 9817.00.60; HQ 086211, HQ 952143, HQ 955546, HQ 958875

Dear Port Director:

This is our decision on Protest 2809-95-100594, filed against your classification of a power fence system made in New Zealand. The five (5) entries were liquidated on January 27, 1995, and this protest timely filed on April 27, 1995.

FACTS:

The merchandise under protest consists of individual components which, when assembled, make up an electric fence system (EFS), designed to enclose and control domestic animals and keep wild or feral animals out. A complete EFS consists of three (3) components which are designed to function together: the Controller, the Power Fence System, and the Grounding System. The Controller, called an Energizer, is a machine that utilizes battery or alternating electrical current to electrically charge up to 60 miles of multi-wire fence. It delivers low impedance electrical impulses every second, each lasting .0003 of a second, to shock animals that contact the fence. The Power Fence System consists of wood posts, lengths of fencing of iron or steel wire interspersed with polyethylene strands, electrical components such as insulators, connectors, cut-out switches, and lightening diverters, together with wire reels and tensioners, springs, - 2 -
clips, clamps and related hardware. Finally, the Grounding System consists essentially of ground wires that return current to the Controller.

However, the components under protest were not imported together. The components in the five (5) entries were imported on four (4) separate days. No single importation contains components which, when assembled, constitute a complete EFS.

The components in each importation were entered free of duty as machinery, equipment and implements to be used for agricultural or horticultural purposes, in heading 9817.00.50, Harmonized Tariff Schedule of the United States (HTSUS). In a Legal Memorandum filed on June 13, 1995, in support of the Protest, counsel for the protestant supports the primary claim by maintaining the Controller is otherwise classifiable in subheading 8543.80.98, as electrical machines and apparatus or as a part thereof, in subheading 8543.90.75 and, thus, is not within the list of exclusions from heading 9817.00.50. He also makes an alternative claim under the duty-free provisions of heading 9817.00.60, HTSUS, as parts to be used in articles provided for in headings 8432, 8433, 8434 and 8436. Counsel cites numerous administrative rulings addressing the chapter 98 provisions. However, he does not address the classification of the other components of the EFS under chapters 1 through 97, inclusive.

Your office determined that the components do not qualify under either of the claimed provisions because they are either within the exclusions enumerated in Chapter 98, Subchapter XVII, U.S. Note 2, HTSUS, or they do not perform an agricultural or horticultural activity.

The provisions under consideration are as follows:

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:

3926.90 Other:

3926.90.25 Handles and knobs, not elsewhere specified or included, of plastics
...6.5 percent ad valorem

3926.90.95 (now 98) Other...5.5 percent ad valorem

8436 Other agricultural, horticultural...machinery ...; parts thereof:

8436.80.00 Other machinery...Free

Parts:

8436.99.00 Other...Free

8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in [chapter 85]; parts thereof:

Other machines and apparatus:

8543.80 (now 89) Other:

8543.80.95 (now 89.90) Other...3.9 percent ad valorem

8546 Electrical insulators of any material:

8546.90.00 Other...3.7 percent ad valorem

9030 ...other instruments and apparatus for measuring or checking electrical quantities...: parts and accessories thereof:

Other instruments and apparatus, for measuring or checking voltage, current, resistance or power...:

9030.39.00 Other...3.6 percent ad valorem

9817.00.50 Machinery, equipment and implements to be used for agricultural or horticultural purposes...Free

9817.00.60 Parts to be used in articles provided for in headings 8432, 8433, 8434 and 8436...Free

ISSUE:

Whether the components of the EFS, or any of them, qualify either under heading 9817.00.50 or heading 9817.00.60.

LAW AND ANALYSIS:

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. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

To be eligible for duty-free entry under either heading 9817.00.50 or heading 9817.00.60, a good must not be excluded by a U.S. legal note in Chapter 98, Subchapter XVII; it must be an article that answers to a recognized agricultural or horticultural purpose, or be a part to be used in articles of headings 8432, 8433, 8434 and 8436; and, the good must conform to applicable Customs Regulations where the rate of duty depends on actual use.

A complete EFS, as described, whether assembled or unassembled, used for the purpose of retaining farm animals in an enclosed space for safety reasons, bears a sufficient relationship to the care and maintenance of livestock as to qualify as a legitimate agricultural pursuit for the purposes of heading 9817.00.50. However, neither the Controller or Energizer, nor any of the other components enumerated in the five (5) entries under protest is machinery, equipment and implements for purposes of heading 9817.00.50, as none individually performs an agricultural or horticultural function in and of itself. It is the EFS that performs the agricultural or horticultural function, not the individual components. See HQ 086211, dated March 24, 1990, and HQ 958875, dated April 17, 1996. - 5 -

Insofar as heading 9817.00.60 is concerned, the components in issue are eligible for treatments as parts for purposes of that heading, if otherwise qualified. To be so eligible, however, they must be parts to be used in articles provided for in headings 8432, 8433, 8434 and 8436. The components comprising a complete EFS would not be classifiable under any of the four named headings because the EFS functions to produce electric current and is not machinery of any of the specified headings. See HQ 952143, dated July 16, 1992, and HQ 955546, dated February 8, 1994.

HOLDING:

Under the authority of GRI 1, the multiple components under protest are provided for in headings 3917, 3926, 8543, 8546, and 9030, respectively. They are classifiable in their respective subheadings, as appropriate. For the reasons stated, they are not classifiable either in heading 9017.00.50 or in heading 9017.00.60.

The protest should be DENIED. 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, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification

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