CLA-2 CO:R:C:M 089936 NLP

Mr. Richard Macchione
Boston Bay Brokers Inc.
225 Friend Street
Suite 700-1
Boston, MA 02114

RE: HRL 089408; salmon pens; Heading 8907; Heading 9817; agricultural or horticultural machinery, equipment and implements; aquaculture

Dear Mr. Macchione:

This is in response to your letter dated July 19, 1991, in which you requested a reconsideration of Headquarters Ruling Letter (HRL) 089408, dated June 3, 1991, which concerned the classification of salmon pens under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

HRL 089408, dated June 3, 1991, dealt with the classification of salmon pens that are used to contain salmon. The merchandise, as imported, contains the pipes, fittings and wooden planks comprising an entire salmon pen, less the actual netting used to contain the salmon. HRL 089408 determined that the salmon pens were not classified in headings 8432, 8433, 8434 or 8436 as these headings mention merchandise used only for agricultural pursuits (i.e. "cultivating the soil, harvesting crops, and raising livestock) and the salmon pens are used for aquacultural purposes. HRL 089408 held that since the salmon pens were not agricultural machinery used for agricultural purposes and because they were floating structures used to contain fish, they were classified in subheading 8907.90.00, HTSUSA, which provides for other floating structures, other, other.

It is your position that salmon pens are used for an aquacultural pursuit and that aquaculture is a form of agriculture. Therefore, the salmon pens should be classified in subheading 9817.00.50, HTSUSA, which provides duty free treatment

for agricultural machinery, equipment and implements used in agricultural pursuits. In support of this position you reiterate arguments made in your letters of March 5, 1991, and April 22, 1991, which are based on dictionary definitions and an excerpt of Title 29, Part 780 of the Code of Federal Regulations, Exemptions Applicable to Agriculture, Processing of Agricultural Commodities and related subjects under the Fair Labor Standards Act of 1938, as amended, Section 780.109 and Section 780.120.

ISSUE:

Are the salmon pens "agricultural" and thus entitled to entry free of duty in subheading 9817.00.50, HTSUSA.

LAW AND ANALYSIS:

Heading 9817.00.50, HTSUSA, 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, HTSUSA, under Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, HTSUSA. 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 salmon pens are excluded from heading 9817, HTSUSA. The salmon pens are classified in subheading 8907.90.00, HTSUSA. This subheading is not excluded from classification in heading 9817, HTUSA, by operation of Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2(y). The first part of the test is satisfied.

The second part of the test calls for the salmon pens to be included within the terms of the heading as required by GRI 1. The salmon pens 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. It is your position that fish farming, the pursuit in which these salmon pens will be used, is agricultural in nature.

Inasmuch as subheading 9817 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 determining that the salmon pens were not used for agricultural pursuits, HRL 089804 relied on the definition of agriculture as stated in Webster's Third New International Dictionary. Agriculture was defined as "the science or art of cultivating the soil, harvesting crops, and raising livestock. Aquaculture was 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."

In your submission you make reference to Title 29, Part 780 of the Code of Federal Regulations, Exemptions applicable to Agriculture, Processing of Agricultural Commodities and related subjects under the Fair Labor Standards Act of 1938, as amended. Section 780.109 states that "fish farming falls within the scope of the meaning of 'farming in all its branches' and employees engaged in such operations would be employed in agriculture." Section 780.120 confirms that for the purpose of this bulletin, fish farming is considered agriculture, but this section also states that "Fish are not 'livestock'."

Though you claim that the salmon pens are used for fish farming and that aquaculture is a form of agriculture, our review of the definitions and cases affirms that agricultural pursuits are different from aquacultural pursuits. We cannot agree with your interpretations of the dictionary definitions. Furthermore, our classification of an article as being used for agricultural pursuits is not dependent upon or in any way related to that of the Department of Labor or any other government agency. (See, Marine Products Co. v. United States, 42 Cust. Ct. 154, 155, C.D. 2080 (1959), which states that "[c]haracterization of imported merchandise by governmental agencies for other than tariff purposes does not determine tariff classification".) Therefore, the second part of the test for classifying an item in subheading 9817.00.50, HTSUSA, has not been met. It is our position that the salmon pens are not used for agricultural purposes and are not classified in subheading 9817.00.50, HTSUSA.

HOLDING:

The salmon pens are classified in subheading 8907.90.00, HTSUSA and are not eligible for duty free treatment under subheading 9817.00.50, HTSUSA, and we affirm HRL 089804.


Sincerely,

John Durant. Director
Commercial Rulings Division