N322133

N322133 November 5, 2021 CLA-2-76:OT:RR:NC:N1:116 CATEGORY: Classification TARIFF NO.: 7610.90.0080; 9817.00.5000; 9903.88.03 Christina Leonard Sandler, Travis & Rosenberg, P.A. 675 Third Avenue, Suite 1805-06 New York, NY 10017 RE: Classification of agricultural shelving from China for use in the cultivation of mushrooms Dear Ms. Leonard: In your letter dated October 8, 2021, you requested a tariff classification on behalf of your client, Miko Ag Realty Investments LLC, dba Rebel Mushrooms, for agricultural shelving. Illustrative literature and product descriptions were provided. You describe the subject articles as agricultural “shelving” made from heavy-duty aluminum that is designed to withstand the weight of growing material, mushrooms, lorries, lighting, and irrigation equipment. This mushroom-growing equipment will be bolted to the floor and will be used to grow exotic mushrooms that will sold to gourmet grocers. The product is made from non-corrosive and food grade aluminum which is crucial for watering the mushrooms and ensuring that the mushrooms are safe for human consumption. Each unit measures approximately 5.25 feet in width, ranges from 34.5 to 49.2 feet in length, and is approximately 11 feet tall. They are also designed for picking lorries and are imported with features that allow for irrigation equipment to be securely attached. The subject articles are manufactured in China. You suggest that the article is properly classified in provision 9403.20.0081, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other furniture and parts thereof: other metal furniture: other: Counters, lockers, racks, display cases, shelves, partitions and similar fixtures: other. We disagree. The applicable subheading for the mushroom-growing equipment will be 7610.90.0080, HTSUS, which provides for aluminum structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge-sections, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, balustrades, pillars and columns); aluminum plates, rods, profiles, tubes and the like, prepared for use in structures: other: other: other. The rate of duty will be 5.7 percent ad valorem. In your request, you also stated that you believe the subject articles are eligible for duty exemption under subheading 9817.00.5000, HTSUS. Machinery, equipment and implements to be used for agricultural or horticultural purposes are provided for under the special classification provision of subheading 9817.00.5000, HTSUS. In order for the subject merchandise to fall within the special provisions of Chapter 98, HTSUS, all parts of 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, HTSUS; (2) The terms of the headings must be met in accordance with GRI 1, HTSUS, which provides that classification is determined according to the terms of the headings and any relative section or chapter notes; and (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). The first part of the test is to determine whether the mushroom-growing equipment subject article is excluded from heading 9817, HTSUS. The article is classifiable in heading 7610, HTSUS. While there is an exclusion under heading 9817 for articles that fall under the provisions for Chapter 76, HTSUS, heading 7610, HTSUS, is excepted from that exclusion. Because heading 7610, HTSUS, is excepted from the exclusion for articles of Chapter 76, the first part of the test is satisfied. The second part of this test calls for the subject article to be included within the terms of subheading 9817.00.50, HTSUS, as required by GRI 1. The article 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 the subject article is used for the horticultural purpose of growing exotic mushrooms. Indeed, the subject article is designed with features for picking lorries and an irrigation system. It is the opinion of this office that the product would qualify as mushroom-growing equipment. The third part of the test is that the importer meets the actual use requirements of sections 10.131 through 10.139, CBP Regulations [19 CFR 10.131 through 10.139]. If these requirements are satisfied, the third part of the test will be met and the subject merchandise would be classifiable under subheading 9817.00.5000, HTSUS, as agricultural or horticultural equipment, and would be free of duty. Based on the information provided, the subject merchandise is classifiable in subheading 9817.00.50, HTSUS, if the actual use conditions and requirements of 19 CFR Sections 10.131 through and including 10.139 are met. Please note that the additional duties imposed by headings 9903.88.01, 9903.88.02, 9903.88.03, and 9903.88.04 do not apply to goods for which entry is properly claimed under a provision of chapter 98 of the HTSUS, except for goods entered under headings 9802.00.40, 9802.00.50, 9802.00.60, and 9802.00.80. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions, please contact NIS Angelia Amerson at angelia.m.amerson@cbp.dhs.gov. Sincerely, Steven A. Mack Director National Commodity Specialist Division