Protest and Application for Further Review 1704-16-100841; Tariff Classification of Pop-Up Sprinklers

HQ H312791 July 6, 2022 CLA-2 OT:RR:CTF:EMAIN H312791 JDK CATEGORY: Classification TARIFF NO(s).: 8424.81.90; 9817.00.50 Port Director Atlanta Seaport 157 Tradeport Drive Atlanta, GA 30354 Attn: Michelle Marshall, Import Specialist, Center of Excellence and Expertise-Machinery RE: Protest and Application for Further Review 1704-16-100841; Tariff Classification of Pop-Up Sprinklers Dear Port Director: The following is our decision on Protest and Application for Further Review (AFR) No. 1704-16-100841, which was filed on October 18, 2016, on behalf of Rain Bird Distribution Corp. (“Rain Bird”). The protest pertains to the classification of pop-up Series 1800 and B45194 MiniPaw sprinklers, under the Harmonized Tariff Schedule of the United States (HTSUS). Rain Bird entered the subject merchandise on February 23, 2016, under subheading 8421.99.00, HTSUS (2016), as other parts of filtering machinery and apparatus. At the time of entry, Rain Bird also indicated that the subject merchandise is eligible for the duty-free benefits of subheading 9817.00.50, HTSUS, which provides for “Machinery, equipment and implements to be used for agricultural or horticultural purposes.” U.S. Customs and Border Protection (CBP) liquidated the entries on September 16, 2016, under subheading 8424.81.90, HTSUS (2016), which provided for, “Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof: Other appliances: Agricultural or horticultural: Other…” CBP did not apply the duty-free benefits of subheading 9817.00.50, HTSUS. On October 18, 2016, protestant filed a protest and AFR. In its protest, Rain Bird does not contest the classification of the subject merchandise under subheading 8424.81.90, HTSUS, but does contend that CBP erred in not liquidating the merchandise under subheading 9817.00.50, HTSUS. FACTS: The first item under consideration is the 1800 series pop-up sprinkler spray heads. The stems of the 1800 series sprinklers may have different lengths and have the ability to seal at the bottom when water is turned off to avoid leaking. The sprinklers are used to spray water on plants, turf, gardens and crops. When the water valve opens, the water pressure forces the stem in the sprinkler to pop up and spray water. A nozzle attached to the top of the stem adjusts the distance, pattern and amount of water applied. When the water valve closes, the spring in the body of the sprinkler retracts the stem into the body of the sprinkler. Other than the internal spring, which is made of metal, the sprinkler is made of plastic. When ready for use, they are inserted into the ground with the top of the sprinkler at ground level. The second item under consideration is the B45194 MiniPaw pop-up impact sprinkler. The MiniPaw is a rotary sprinkler with a pressure-activated wiper seal that assures reliable pop-up and retraction. The sprinkler has a diffuser that breaks water into smaller droplets for uniform watering, and a spray guide arm that controls the water stream to prevent side splash onto buildings and walkways. The MiniPaw is also used to spray water on plants, turf, gardens, and crops. ISSUE: Whether the pop-up sprinklers are eligible for duty-free benefits under subheading 9817.00.50, HTSUS. LAW AND ANALYSIS: Initially, we note that the matters protested are protestable under 19 U.S.C. §1514(a) (2) as decisions on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protests No. 2704-19-103345 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a). Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRIs”). 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 headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. CBP Regulations, 19 CFR § 10.133 provides: When the tariff classification of any article is controlled by its actual use in the United States, three conditions must be met in order to qualify for free entry or a lower rate of duty unless the language of the particular subheading of the [HTSUS] applicable to the merchandise specifies other conditions. The conditions are that: Such use is intended at the time of importation. The article is so used. Proof of use is furnished within 3 years after the date the articles is entered or withdrawn from warehouse for consumption. Further, CBP Regulations, 19 CFR § 10.134, in relevant part, provides that declaration of intent as to actual use of imported merchandise, “shall be made by filing with the entry for consumption…a declaration as to the intended use of the merchandise, or by entering the proper subheading of an actual use provision…on the entry form.” In addition, “[e]ntry made under an actual use provision of the HTSUS may be construed as a declaration that the merchandise is entered to be used for the purpose stated in the HTSUS, provided the Center director is satisfied the merchandise will be so used.” The first requirement set forth in 19 CFR § 10.133, supra, is at issue in this matter. In this instance, Rain Bird entered the merchandise under subheading 9817.00.50, HTSUS, at the time of importation. Subheading 9817.00.50, HTSUS, is an actual use provision. CBP may construe the entry under an actual use provision as a declaration of intent as to the actual use of the imported merchandise. As such, the requirement that actual use is intended at the time of importation has been satisfied in the instant matter. HOLDING: By application of GRIs 1 and 6, the pop-up Series 1800 and B45194 MiniPaw sprinklers are classified under heading 8424, HTSUS (2016), and specifically under subheading 8424.81.90, HTSUS, which provides for, “Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof: Other appliances: Agricultural or horticultural: Other…” The general column one rate of duty is 2.4 percent. The pop-up Series 1800 and B45194 MiniPaw sprinklers are eligible for classification under subheading 9817.00.50, HTSUS, which provides for duty free benefits for “Machinery, equipment and implements to be used for agricultural or horticultural purposes,” if the actual use conditions and requirements of 19 CFR § 10.131 through and including 10.139, are met. Inasmuch as this is the case, you are instructed to GRANT the protest in accordance with the above reasoning. You are instructed to notify the protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification.  Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/, or other methods of public distribution. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Craig T. Clark, Director Commercial and Trade Facilitation Division