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HQ 557232

September 28, 1993

CLA-2 CO:R:C:M 557232 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8424.81.90; 9817.00.50

District Director
U.S. Customs Service
880 Front Street, Room 5-S-9
San Diego, CA 92188

RE: Protest No. 2501-92-100116; Water Sprinklers; Agricultural and Horticultural Pursuits; Chapter 98, U.S. Note 1; James S. Baker Imports Co. v. U.S.; U.S. v. Boker; HQ's 074237 and 950223; NY's 872754, 851498, 882114, and 826754; 9802.00.80

Dear District Director:

The following is our decision regarding the request for further review of Protest No. 2501-92-100116 concerning your action in classifying and assessing duty on various water sprinklers under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of various water sprinklers (model nos. SP-25, P5-PJ-C, WPS-125, W25-PJDA-C, 25 PGDA-C, 110170-10, SK- 125, WDD-5, IO-28, WSK-125, DP-33, WRB-97, WRB-99, A17-CST, A-17- H, WA-17-F, W-PS-5, SK-5, INTL-SK-2, SP-40-AP, SP-40-H, SP-40-SQ, W25-25-H, WSP-40-H, WSP-40-SST, SP-25-EST, SP-40-EST, and TS-250). All of the sprinklers are designed for irrigating turf, gardens, crops and other plants.

The sprinklers were entered under subheading 8424.81.90, HTSUS, as other agricultural or horticultural mechanical appliances for projecting liquids. Entries containing brass sprinkler components were also entered under subheading 9802.00.80, HTSUS, as articles assembled abroad in whole or in part of fabricated components. However, in a letter to this office dated August 18, 1993, counsel for the importer requested that the claim for classification under 9802.00.80, HTSUS, be abandoned, and that a claim for classification of all the sprinklers in each entry under subheading 9817.00.50, HTSUS, as machinery to be used for agricultural or horticultural purposes, be included in the protest. The entries were liquidated on September 25, 1992, October 2, 1992, November 20, 1992, November 27, 1992, December 4, 1992, and December 11, 1992, under subheading 8424.81.90, HTSUS. The protest was timely filed on December 22, 1992.

The subheadings under consideration are as follows:

8424.81.90: [m]echanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids . . .: [o]ther appliances: [a]gricultural or horticultural: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 3.7 percent ad valorem.

9817.00.50: [m]achinery, equipment and implements to be used for agricultural or horticultural purposes.

Goods classifiable under this provision receive duty-free treatment.

ISSUE:

Whether the water sprinklers are classifiable under subheading 9817.00.50, as machinery to be used for agricultural or horticultural purposes.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS 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.

We first note that there is no disagreement as to the classification of the sprinklers under subheading 8424.81.90, HTSUS.

Chapter 98, U.S. note 1, HTSUS, states that:

[t]he provisions of this chapter are not subject to the rule of relative specificity in general rule of interpretation 3(a). Any article which is described in any provision in this chapter is classifiable in said provision if the conditions and requirements thereof and of any applicable regulations are met.

The question, then, is whether the sprinklers are used for agricultural or horticultural pursuits for the purposes of subheading 9817.00.50, HTSUS.

With regard to the use of the sprinklers in irrigating crops, we find that that use constitutes an agricultural pursuit. In James S. Baker Imports Co. v. U.S., 61 Cust. Ct. 305, C.D. 3619 (1968), it was stated that:

[i]n [U.S.] v. Boker, 6 Ct. Cust. Appls. 243, T.D. 35472, the Court of Customs Appeals construed the word "agriculture" to include only that which provides the substantial requirements of life (food) and comfort (raiment), and not the purely pleasurable pursuits. It held that "agriculture" must lead to the production of necessities and not that which is essentially pleasurable or ornamental.

Therefore, because the sprinklers are used for irrigating crops, in that context the sprinklers are used for an agricultural pursuit.

With regard to the use of the sprinklers in irrigating turf and gardens, those uses are not agricultural pursuits because they lead to the production of that which is essentially pleasurable or ornamental. In HQ 074237, dated March 7, 1985, it was stated that:

[t]he production of turf is not an agricultural pursuit for tariff purposes because it does not involve the growth or production of food or clothing for human beings.

However, the use of the sprinklers in irrigating turf and gardens is an horticultural pursuit. In HQ 074237, it was stated that:

[h]orticulture is a branch of agriculture that deals with the garden production of both food crops and ornamentals. It is recognized that the production of ornamentals in horticulture includes the production of turf on turf farms. Specifically, turf production is a subdivision of ornamental horticulture.

Also, in Baker, the Court stated that:

[c]learly, the treatment of the lawn in these works leaves us with no doubt that the caring of a lawn may properly be considered a horticultural pursuit.

Consequently, because the sprinklers are used for irrigating crops, gardens, and turf, it is our position that they are used for agricultural and horticultural pursuits for the purposes of subheading 9817.00.50, HTSUS. See NY 872754, dated April 7, 1992, NY 851498, dated April 27, 1990, NY 882114, dated February 9, 1993, NY 826754, dated January 14, 1988, and HQ 950223, dated December 4, 1991.

HOLDING:

The water sprinklers are classifiable under subheading 8424.81.90, HTSUS, as other agricultural or horticultural mechanical appliances for projecting liquids. They are also classifiable under subheading 9817.00.50, HTSUS, as machinery to be used for agricultural or horticultural purposes. Upon compliance with the applicable regulations in sections 10.131 - 10.139, Customs Regulations (19 CFR 10.131 - 10.139), the merchandise will be eligible for duty-free treatment.

The protest, as amended, should be granted in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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