CLA-2 RR:TC:MM 559385 JAS
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
* * * *
- 3 -
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
- 4 -
* * * *
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
Appeals Division