HQ 952995

March 10, 1993

CLA-2 CO:R:C:M 952995 RFA

CATEGORY: Classification

TARIFF NO.: 8419.89.50

District Director of Customs

P.O. Box 1490

St. Albans, VT 05478

RE: Protest No. 0201-92-100274; Maple Syrup Evaporator;

9817.00.50; agricultural or horticultural purposes; HQ

556908; HQ 089242; HQ 083930; HQ 086883; HQ 087076

Dear District Director:

The following is our decision regarding the Protest and

Request for Further Review No. 0201-92-100274, dated May 5, 1992.

The protest was filed against your liquidation of the entry of

certain merchandise which was classified in subheading

8419.89.50, Harmonized Tariff Schedule of the United States

(HTSUS).

FACTS:

The merchandise consists of evaporating equipment which is

used on farms to produce maple syrup from the sap of the sugar

maple tree. The sap is collected and then circulated through

evaporating pans in order to boil off water. This process is

continued until the consistency of syrup has been reached.

ISSUE:

Does the maple syrup evaporator 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.

Subheading 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 maple

syrup evaporator is excluded from Heading 9817, HTSUS. To do

this we must first determine under which subheading it is

classified. In HQ 089242 (August 13, 1991), we held that a sap

evaporator is classifiable under subheading 8419.89.50, HTSUS,

which provides for:

\[m\]achinery. . .whether or not electrically heated, for

the treatment of materials by a process involving a

change of temperature such as heating, cooking, . . .

evaporating . . . other than machinery or plant of a

kind used for domestic purposes. . .\[o\]ther machinery,

plant or equipment:. . . \[o\]ther: . . .\[o\]ther. . .

This subheading is not excluded from classification in Heading

9817, 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 subheading 9817.00.50, HTSUS, as

required by GRI 1. The maple syrup evaporator must be

\"machinery\", \"equipment\" or \"implements\" used for \"agricultural

or horticultural purposes\". For this part of the test, the

initial determination to be made is what agricultural or

horticultural pursuit is in question. It is the importer\'s

position that maple syrup production on a family farm, which can

be traced back to colonial times, is an agricultural pursuit.

We do not dispute that the collecting of maple sap is an

agricultural pursuit. However, we have consistently held that

the production of maple syrup is not an agricultural pursuit. See

HQ 089242 and HQ 556908 (September 18, 1992). In HQ 089242, we

stated that the

issue to be resolved is whether. . .the evaporator \[is\]

eligible, upon certification of actual use, for duty-

free entry under subheading 9817.00.50, HTSUSA. In

Headquarters Ruling Letter 073168 dated June 6, 1984,

Customs held that these items were not eligible for

duty-free treatment under item 870.40, TSUS, the

predecessor provision to subheading 9817.0050, HTSUSA.

It remains our opinion that the processing of maple sap

into maple syrup . . . by the evaporator, though

performed on a farm, is not an agricultural or

horticultural activity. Unlike cleaning, sorting and

grading of agricultural products, the processing of sap

into maple syrup is more than a simple preparation of

the product for market. It changes the agricultural

product, maple sap, to maple syrup. Consequently, it

is our opinion that the . . . evaporator \[does\] not

qualify for duty-free treatment under subheading

9817.00.50, HTSUSA.

This ruling was affirmed in HQ 556908, in which we held that the

holding in HQ 089242 continues to be our position as to the

classification of the subject evaporating equipment.

As defined by Webster\'s II New Riverside University

Dictionary, page 87, agriculture is the \"science, art, and

business of cultivating the soil, producing crops, and raising

livestock.\" We believe the processing of a raw agricultural

product (maple sap) into a finished product (maple syrup) goes

beyond the pursuit of agriculture. Therefore, the merchandise

does not meet the second part of the test for classifying an item

in subheading 9817.00.50, HTSUS. We find that the evaporator

does not qualify for duty-free entry as agricultural or

horticultural implements, in Chapter 98, under the HTSUS.

The importer argues that Congress intended only to exclude

those items listed in Section XXII, Chapter 98, Subchapter XVII,

U.S. Note 2. The importer supports his argument by stating that

Congress only required end use certification in order to avoid

the importation of non-farm machinery, equipment, or implements

under the duty-free entry provision.

As the court stated in Rico Import Co. v. United States,

Slip Op. 92-146, dated August 27, 1992, \"\[i\]t is well settled

that tariff acts must be construed to carry out the intent of the

legislature.\" See Nippon Kogaku (USA), Inc. v. United States, 69

CCPA 89, 92, 673 F.2d 380, 382 (1982)(citing Sandoz Chem. Works,

Inc. v. United States, 43 CCPA 152, 156, C.A.D. 623 (1956)). The

first place to look to establish the intent of Congress is the

language of the statute itself. Consumer Prod. Safety Comm\'n v.

GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).

The language of the tariff provision, subheading 9817.00.50,

HTSUS, grants duty-free treatment for \"\[m\]achinery, equipment and

implements to be used for agricultural or horticultural purposes

. . .\"(emphasis added). It is clear that Congress required that

the item being imported be used for a specific agricultural

purpose. We incorporated this Congressional intent in the second

part of the three part test stated above by requiring that an

agricultural purpose must be found. We find that this test

reflects the intent of Congress.

The importer believes that our decision is based upon the

assumption that Customs alone, among all other government

agencies, considers maple syrup as a non-agricultural product.

However, \"it is well established that statutes, regulations and

administrative interpretations \[by other government agencies\]

relating to \'other than tariff purposes\' are not determinative of

customs classification disputes.\" Amersham Corp. v. United

States, 5 CIT 49, 56, 564 F.Supp. 813 (1983). See also United

States v. Mercantil Distribuidora, S.A., 43 CCPA 111, C.A.D. 617

(1956); Swift & Co. v. United States, 27 CCPA 181, C.A.D. 83

(1939). We believe that the proper issue here is whether the

processing of the maple sap into maple syrup goes beyond the

pursuit of agriculture. As discussed above, we find that the

processing of the sap into syrup is more than a simple

preparation of the product for market. Because we find that this

process is not an agricultural pursuit, the evaporator is

ineligible duty-free entry.

HOLDING:

The submitted merchandise is classifiable under subheading

8419.89.50, HTSUS, which provides for: \[m\]achinery. . .whether or

not electrically heated, for the treatment of materials by a

process involving a change of temperature such as heating,

cooking, . . . evaporating . . . other than machinery or plant of

a kind used for domestic purposes. . .\[o\]ther machinery, plant or

equipment:. . . \[o\]ther: . . .\[o\]ther. . .\" The column 1,

general rate of duty is 4.2 percent ad valorem.

The protest should be denied in full. A copy of this

decision should be attached to Customs Form 19 and provided to

the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

Commercial Rulings Division