Backpack blower; fans; 9817.00.50; agricultural or horticultural purposes; EN 84.14; HQs 083930, 086883, and 087076; NY 887425, modified

HQ 955369 May 2, 1994 CLA-2 CO:R:C:M 955369 RFA CATEGORY: Classification TARIFF NO.: 8414.59.60 Ms. Silvia Perez M.G. Maher & Co., Inc. One Canal Place, Suite 2100 New Orleans, LA 70130 RE: Backpack blower; fans; 9817.00.50; agricultural or horticultural purposes; EN 84.14; HQs 083930, 086883, and 087076; NY 887425, modified Dear Ms. Perez: This is in reference to NY 887425, dated July 14, 1993, issued to you on behalf of Poulan/Weed Eater Division of WCI, by the Area Director of Customs in New York. In NY 887425, you received the tariff classification of the model 442 "Poulan Pro" gasoline powered backpack blower under the Harmonized Tariff Schedule of the United States (HTSUS). Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993)(hereinafter, "section 625"), notice of the proposed modification of NY 887425 was published on March 30, 1994, in the Customs Bulletin, Volume 28, Number 13. No comments were received. Our decision in this matter is set forth below. FACTS: The model 442 "Poulan Pro" gasoline powered backpack blower, is comprised of a 2-cycle, air-cooled engine which drives a centrifugal blower. It has a flexible tube air outlet as well as a multi-tube, hand-held nozzle. The merchandise is designed to be carried on the user's back by means of shoulder straps and backpad. According to the literature, the merchandise is designed to sweep debris, grass, straw, leaves, small twigs or light snow. It can also be used for fast drying wet outdoor areas such as a patio, sidewalk, carport, etc. In NY 887425, dated July 14, 1993, the Area Director of Customs in New York, classified the merchandise under subheading 8414.59.80, HTSUS [1993], which provides for: "[a]ir or vacuum pumps, air or other gas compressors and fans . . . : [f]ans: [o]ther: [o]ther. . . ." The ruling further stated that the subject merchandise may be eligible for duty-free treatment under heading 9817.00.50, HTSUS, which provides for machinery, equipment, and implements to be used for agricultural or horticultural purposes. ISSUE: What is the classification of the backpack blower and does it qualify for duty-free entry as agricultural or horticultural implements, in Chapter 98, under the HTSUS? 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 shall be determined according to the terms of the headings and any relative section or chapter notes. Heading 9817.00.50, HTSUS, grants duty-free treatment for "[m]achinery, equipment and implements to be used for agricultural or horticultural purposes. . .". This is an actual use provision. See HQ 083930 (May 19, 1989). To fall within this special classification, a three part test must be met. First, the subject merchandise must not be excluded from the heading under Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, HTSUS. Secondly, the terms of the headings must be met in accordance with GRI 1, which provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Thirdly, the article must comply with the actual use regulations under section 10.131 through 10.139, Customs Regulations (19 CFR 10.131 through 10.139). See HQ 086883 (May 1, 1990); HQ 087076 (June 14, 1990); HQ 089936 (November 15, 1991). The first part of the test is to determine whether the backpack blower is excluded from heading 9817.00.50, HTSUS. To do this we must first determine under which subheading it is classified. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Cooperation Council's official interpretation of the HTSUS. While not legally binding, 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 54 Fed.Reg. 35127, 35128 (August 23, 1989). EN 84.14, page 1163, defines "fans" as follows: These machines, which may or may not be fitted with integral motors, are designed either for delivering large volumes of air or other gases at relatively low pressure or merely for creating a movement of the surrounding air. Those of the first kind may act as air extractors or as blowers. They consist of a propeller or blade- type impeller revolving in a casing or conduit, and function on the principle of rotary or centrifugal compressors. The subject merchandise meets the definition of "fans" under EN 84.14 because it is fitted with an integral motor and is designed to act as a centrifugal blower. It is therefore classifiable under subheading 8414.59.60, HTSUS [1994], which provides for: "[a]ir or vacuum pumps, air or other gas compressors and fans . . . : [f]ans: [o]ther: [o]ther: [o]ther . . . ." This subheading is not excluded from classification in heading 9817.00.50, HTSUS, by operation of Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2. The second part of the test calls for the merchandise to be included within the terms of heading 9817.00.50, HTSUS, as required by GRI 1. The backpack blower must be "machinery", "equipment" or "implements" used for "agricultural or horticultural purposes". Webster's II New Riverside University Dictionary (1988), defines machinery, equipment, implements, agriculture and horticulture as follows: Machinery: 1. Machines or machine parts in general. 2. The working parts of a machine. 3. A system of related elements that operates in a definable way. Equipment: 1. The act of equipping or state of being equipped. 2. Something with which one is equipped. Implement: 1. A tool, utensil, or instrument for doing a task. 2. An article used to outfit or equip. Agriculture: The science, art, and business of cultivating the soil, producing crops, and raising livestock. Horticulture: The science, art, and business of cultivating fruits, vegetables, flowers, and plants. There is no question that the backpack blower is "machinery". The next determination to be made is what agricultural or horticultural pursuit is in question. According to the literature, the backpack blowers have a variety of utilitarian purposes, none directly related to agricultural or horticultural purposes. The primary purpose of the merchandise is to "sweep debris, grass, straw, leaves, small twigs or light snow" and for "fast drying wet outdoor areas such as a patio, sidewalk, carport, etc." Based upon this description of uses, we find that the merchandise, while meeting the definition of "machinery", does not meet the definitions for agricultural or horticultural purposes. The merchandise does not meet the second part of the test for classifying an item in heading 9817.00.50, HTSUS. Therefore, we find that the backpack blower does not qualify for duty-free entry as agricultural or horticultural machinery, in Chapter 98, under the HTSUS. NY 887425 must be modified accordingly. HOLDING: The submitted merchandise is classifiable under subheading 8414.59.60, HTSUS [1994], which provides for: "[a]ir or vacuum pumps, air or other gas compressors and fans . . . : [f]ans: [o]ther: [o]ther: [o]ther. . . ." The column 1, general rate of duty is 4.7 percent ad valorem. In accordance with section 625, this ruling will become effective 60 days after publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations [19 CFR 177.10(c)(1)]. Sincerely, John Durant, Director Commercial Rulings Division