CLA-2:CO:R:C:M 952868 JAS
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.
FACTS:
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
ISSUE:
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.
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.
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.
HOLDING:
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.
Sincerly,
John Durant, Director
Commercial Rulings Division