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HQ 089408


June 3, 1991

CLA-2 CO:R:C:M 089408 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8907.90.00

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

RE: Classification of circular salmon pens

Dear Mr. Macchione:

This in response to your letter of April 22, 1991, written on behalf of Penobscott Salmon Co., concerning the classification of certain salmon pens under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The imported items are the entire salmon pens less the actual netting used to contain the salmon. The importer sent, along with his inquiry, literature on a similar system from the same supplier. The pen contained in the literature is square, whereas the imported pens are circular. Otherwise, the specifications of the two pens are primarily the same. The merchandise, as imported, contains the pipes, fittings, and wooden planks. The pipe is a semi-rigid PVC, styrofoam-filled, type construction. It is imported without the fittings attached. The wooden walkway is in planks, and is treated with a preservative to prevent against rot and decay caused by saltwater. The wood is pre-cut and grooved for ease of assembly and attachment to the system. The pens are not permanently affixed to the waterbed, as they are kept in position by an anchor that is tethered to the salmon pen.

ISSUE:

Whether salmon pens can be classified as agricultural machinery under the HTSUSA and, if not, what is the proper classification of salmon pens under the HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

Webster's Third New International Dictionary, Merriam- Webster Inc., Springfield, MA, 1986, defines agriculture as "the science or art of cultivating the soil, harvesting crops, and raising livestock." However, aquaculture is defined as "a. the art of cultivating the natural produce of water; b. the raising or fattening of fish in enclosed ponds."

The importer argues that the salmon pens should be classified in one of the provisions for agricultural machinery found in Headings 8432, 8433, 8434, or 8436, HTSUSA. If the pens are not to be classified in any of those headings, then, it is argued, the pens should be classified under Heading 9817, HTSUSA, providing for agricultural machinery, equipment and implements used in agricultural pursuits.

Headings 8432, 8433, 8434, and 8436 cover the following merchandise:

8432 Agricultural, horticultural, or forestry machinery for soil preparation or cultivation; lawn or sports- ground rollers.

8433 Harvesting or threshing machinery, including straw or fodder balers; grass or hay mowers; machines for cleaning, sorting or grading eggs, fruit or other agricultural produce, other than machinery of Heading 8437.

8434 Milking machines and dairy machinery.

8436 Other agricultural, horticultural, forestry, poultry- keeping or bee-keeping machinery, including germination plant fitted with mechanical or thermal equipment; poultry incubators and brooders.

Since these four headings mention merchandise used only for agricultural pursuits (i.e. "cultivating the soil, harvesting crops, and raising livestock"), then they cannot apply to salmon pens which, quite obviously, are used for aquacultural purposes (i.e. "the raising or fattening of fish in enclosed ponds").

However, Heading 8907, HTSUSA, provides for "other floating structures (i.e. rafts, tanks, cofferdams, landing-stages, buoys, and beacons)." The Explanatory Notes to Heading 8907 (p.1454), HTSUSA, state that the heading "covers certain floating structures not having the character of vessels." It further states in Explanatory Note (2) that "floating tanks used to
contain live crustaceans or fish" are provided for under the heading. Although not tanks, the salmon pens float and are used to contain fish. This indicates to us that the salmon pens should be classified as floating structures.

We also note New York ruling 849926, dated March 9, 1990, which dealt with the classification of fish pens from West Germany. In that case, the merchandise consisted of unfinished fish net pens made from galvanized steel, but neither the netting nor the mooring were included. The pens were not affixed to the waterbed and they were classified under subheading 8907.90.0090, HTSUSA.

Since the salmon pens cannot be classified as agricultural machinery used for agricultural purposes, and because they are floating structures used to contain fish, they are classified under subheading 8907.90.00, HTSUSA.

HOLDING:

The salmon pens are classifiable under subheading 8907.90.00, HTSUSA, providing for "other floating structures: other: other." The general, column one rate of duty for items classified under this subheading is 3.8 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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