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HQ 967726




September 2, 2005

CLA-2: RR:CTF:TCM 967726 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 8428.33.0000

Ms. Chelle Engolio
Office Manager
Water Management Technologies
P.O. Box 66125
Baton Rouge, LA 70896

RE: Classification of Fish Grader Machines

Dear Ms. Engolio:

This is in response to your request dated May 10, 2005, made on behalf of the importer, Water Management Technologies, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of fish grader machines. A sample has not been provided to Customs and Border Protection (CBP) with this request.

FACTS:

Water Management Technologies, Inc. (WMT), has published literature for the fish grading machines now at issue, which indicates that 9 different models of grading machines are offered. The grading machines are available for fish sizes 1 g to 10 kg, with many combinations to suit large quantities delivered by "Fish-Pump, Airlift or low volume hand netting and other methods". Specifically, this literature identifies the following models:

* FGM 2: 1 g-1.5 kg, 4 sizes, 2-4 tons/h. capacity * FGM 3: 2 g-2.5 kg, 4 sizes, 2-4 tons/h. capacity * FGM 4: 1g-200 g, 3 sizes, 0.5-1.0 tons/h. capacity * FGM 9: 1g-1.5 kg, 5 sizes, 2-4 tons/h. capacity

The literature further identifies that the machines have a protected area for the motor's electric supply and on/off switch, grading belts, outlets to both sides, an intake hopper and shower line, a grading belt adjustment with "mm-scale", a collector hopper with movable side walls, and a rubber hose. According to this literature, the materials used in manufacturing these machines are seawater-resistant aluminum, refined steel, and polyethylene. The motors are identified as single-phase (110, 220, 240 Volt) or 3-phase (380, 410, 440 Volt). The 3-phase motors allow the belt lines to operate with two speeds. We have reviewed additional literature, which indicates that the subject machines are mechanical belt graders. These types of fish graders use a pair of powered belt conveyors set at an incline to each other with the separation of the belts adjustable at both ends. The fish are introduced to the moving belts from a hopper at the inlet end and travel along the belt dropping through at areas predetermined by the angle of the belts relative to each other. The fish then travel out the chutes from the bottom usually into pipes to be carried by gravity to their destinations.

ISSUE:

What is the proper classification of the merchandise under the HTSUSA? Whether the merchandise qualifies for duty-free entry under Chapter 98, HTSUSA, as agricultural or horticultural machinery.

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

We begin by noting that the subject machines have a conveyor belt apparatus. Based on the aforementioned description of how the machinery operates, the conveyor belt actually serves to transport the fish through this machinery. Accordingly, we must first consider heading 8428, HTSUSA, which specifically provides for "Other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics)". It is our determination, therefore, that the subject fish graders are a type of lifting, handling, loading or unloading machinery and are properly classified in heading 8428, HTSUSA. Since the subject machinery has a conveyor, it is classifiable in subheading 8428.33.0000, HTSUSA, which provides for " . . . Other continuous-action elevators and conveyors for goods or materials: Other, belt type" because it has a continuous-action belt type conveyor. In fact, the EN's for 8428 state that this heading covers a wide range of machinery for the mechanical handling of materials, goods, by way of conveyance. The EN further notes that such machines remain in heading 8428 even if specialized for a particular industry, i.e., the fish industry.

CBP New York Ruling (NY) 858198, dated November 30, 1990, and NY 887272, dated July 8, 1993, provide support for classifying the subject fish grader machines in heading 8428, HTSUSA. In NY 858198, a machine described as a "sorting conveyor" with a roller conveyor apparatus designed to transport and sort tubing was classified in subheading 8428, HTSUSA. Similarly, NY 887272 classified a continuous action "sorting conveyor" in subheading 8428, HTSUSA.

The importer, WMT, has suggested classification of the merchandise in heading 8433, HTSUSA, which includes machines for cleaning, sorting or grading eggs, fruit or other agricultural produce, other than machinery of heading 8437. However, this heading only covers machines used in place of hand tools for the mechanical performance of the harvesting of agricultural crops or the cleaning, sorting or grading of eggs, fruit or other agricultural produce. See EN 84.33. Inasmuch as heading 8433, HTSUSA, does not provide a definition for agriculture, that tariff term must be considered in accordance with its common and commercial meaning. See Nippon Kogaku (USA) v. United States, 673 F.2d 380 (1982). Thus, to ascertain the common and commercial meaning of a tariff term, the courts may consult dictionaries, lexicons, and other reliable sources of information. See Pistorini & Co., Inc. v. United States, 461 F. Supp. 331, 332 (1978).

In Webster's Third New International Dictionary, "agriculture is defined as "the science or art of cultivating the soil, harvesting crops, and raising livestock", whereas "aquaculture" is 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. In fact, CBP has previously determined that machinery, such as salmon pens used in "aquaculture" pursuits, are different from machinery used in "agricultural" pursuits. See CBP Headquarters Ruling (HQ) 089936, dated November 15, 1991. See also HQ 950674, dated January 30, 1992.

You have further indicated that the importer has inquired about the applicability of a duty free tariff classification for the subject machinery under subheading 9817.00.50, HTSUSA, which provides for machinery, equipment and implements for agricultural or horticultural purposes. Chapters 98 and 99, HTSUSA, provide an additional U.S. classification that grants special treatment to qualifying articles.

The tariff provision for machinery, equipment and implements to be used for agricultural or horticultural purposes, subheading 9817.00.50, HTSUSA, is an actual use provision. See HQ 083930, dated May 19, 1989. In order for this machinery to fall within the special provisions of Chapter 98, HTSUSA, the following three-part test must be met:

(1) The article in question must not be excluded from the heading under Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, HTSUSA.

(2) The terms of the headings must be met in accordance with GRI 1, HTSUSA, which provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

(3) The article must comply with the actual use provision requirements of sections 10.131-10.139, Customs Regulations (19 CFR 10.131-10.139).

In the instant case, we have already noted that pursuant to HQ 089936, dated November 15, 1991, and HQ 950674, dated January 30, 1992, the subject fish graders are not employed for "agricultural" pursuits and do not qualify as "Machinery, equipment and implements to be used for agricultural or horticultural purposes" within the meaning of subheading 9817.00.50, HTSUSA. Thus, the merchandise has failed the three-part test because it has not met the terms of the heading and cannot be classified in heading 9817, HTSUSA.

In view of the foregoing, we find that the subject fish grader machines with conveyor belts as described in this ruling, are classifiable as ". . . Other continuous-action . . . conveyors for goods or materials: Other, belt type" in subheading 8428.33.0000, HTSUSA.

HOLDING:

The subject merchandise is correctly classified in subheading 8428.33.0000, HTSUSA, which provides for: "Other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics): Other continuous-action elevators and conveyors for goods or materials: Other, belt type." The general column one duty rate is Free.

Sincerely,


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