Revised ICP on Agricultural Actual Use Provisions

U.S. Customs and Border Protection has issued a revised version of its informed compliance publication entitled, What Every Member of the Trade Community Should Know About: the Agricultural Actual Use Provisions - Tariff Classification Issues of Headings 9817.00.50 and 9817.00.60.

This publication was prepared by the National Commodity Specialist Division of Regulations and Rulings and provides guidance on the Harmonized Tariff Schedule (HTS) classification of agricultural actual use items. The ICP was first published in January 1998 and was most recently revised in March 2010.

According to CBP sources and a comparison to the February 2008 version of the ICP, the following substantive changes were made to the revised ICP:

Revised Information on the Three-Part Test

CBP has reworked the section of the ICP on the "three-part test," which is required by CBP before an article can be classified in either HTS 9817.00.50 or 9817.00.60. CBP requires that before an article can be classified in either of these headings the following three-part test must be applied:

1. The articles must not be among the long list of exclusions to subheading 9817.00.50 or 9817.00.60 under Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2;
2. The terms of 9817.00.50 or 9817.00.60 must be met in accordance with GRI 1; and
3. The merchandise must meet the actual use conditions required in accordance with sections 19 CFR 10.131-10.139.

Removed Language on Meeting Parts in Order

The revised ICP states that a good must satisfy each part of the test. The previous version of the ICP stated that a good must satisfy each part of the test, taken in order.

Updated List of Excluded Items in Part One

Part one of the test includes articles that are exclusions. CBP has updated the list of articles that are excluded from consideration under HTS 9817.00.50 or 9817.00.60 (found in HTS Chapter 98, Subchapter XVII, U.S. Note 2):

CBP has removed the exclusion exceptions for the following HTS headings/subheadings provided for in HTS Chapter 85: 8524 and 8528.59.90. CBP has also added an exclusion exemption for heading 8542. In addition, CBP revised the exclusion exception for 8543.11 through 8543.81 to read as 8543.11 through 8543.30.

The revised ICP also notes that HTS subheadings 8543.11 and 8543.89.93 which are mentioned in as exceptions are not in the HTS at the time of this publication and appear here as an error to be corrected.)

Updated Definitions for Part Two

The second part of the three-part test calls for the merchandise to be included within the terms of heading 9817. The following are the revised definitions used for the purposes of part two:

Machine: 1. f: A mechanically, electrically or electronically operated device for performing a task.

Equipment: 1. a: the set of articles or physical resources serving to equip a person or thing: as (1) the implements used in an operation or activity.

Implement: 1. An article serving to equip. 2. a device used in performance of a task.

Agriculture: The science, art, and practice of cultivating the soil, producing crops, and raising livestock.

Horticulture: The science and art of growing fruits, vegetables, flowers, or ornamental plants.

Updated Information on Actual Use Certifications for Part Three

The last part of the test calls for compliance with the regulatory requirements governing actual use provisions as authorized by HTS Additional U.S. Rule of Interpretation 1(b). CBP has revised the information regarding actual use certifications to add that the certification by the importer or user should establish both the use and the appropriate agricultural or horticultural location of use.

Additional Information Added to Introduction

The introduction has been updated to include the following information:

It is not sufficient merely to know the proper classification of merchandise. One must also be aware of and understand the requirements of CBP and those of the numerous other agencies that affect importations, as well as the special classification provisions within the HTS which may change the classification of merchandise or rates of duty. Section XXII of the HTS, under the heading "Special Classification Provisions; Temporary Legislation; Temporary Modifications Established Pursuant To Trade Legislation; Additional Import Restrictions Established Pursuant To Section 22 Of The Agricultural Adjustment Act, As Amended", provides for a number of alternate rates of duty for specific goods that meet the conditions of that Section.

Within Subchapter XVII of Section XXII of the HTS, there are two special classification provisions associated with agriculture, which have their own complexities that must be understood in order to be properly applied (HTS headings 9817.00.50 and 9817.00.60).

ICP Provided for Informational Purposes Only

CBP states that the information provided in this publication is for general information purposes only. CBP cautions that because many complicated factors can be involved in customs issues, an importer may wish to obtain a ruling under CBP Regulations, 19 CFR Part 177, or obtain advice from an expert (such as a licensed Customs Broker, attorney or consultant) who specializes in customs matters. Reliance solely on the general information in this ICP may not be considered reasonable care.

(See ITT's Online Archives or 03/23/10 news, 10032330 7, for BP summary announcing the availability of this ICP.)

ICP on agricultural actual use provisions (posted 03/22/10) available at http://www.cbp.gov/linkhandler/cgov/trade/legal/informed_compliance_pubs/act_use_prov.ctt/act_use_prov.pdf