HQ 950223
DECEMBER 4 1991
CLA-2:CO:R:C:M 950223 JAS
Ms. Grace Padilla
W. J. Byrnes & Co.
P.O. Box 280205
San Francisco, California 94128
RE: Growth Stakes, Fiberglass; Plant Stakes, Telescopic,
Adjustable; Articles of Glass Fibers; Fiberglass Reinforced
Plastics; Agricultural or Horticultural Implements or
Equipment; Ruling 089194 revoked
Dear Ms. Padilla:
In a letter dated August 19, 1991, on behalf of Pacific
Products Inc., you ask that we reconsider an earlier ruling to
you on fiberglass growth stakes because the local import
specialist will not accept the classification confirmed in the
ruling. A sample was submitted.
FACTS:
The ruling in question, dated June 27, 1991 (089194),
addressed the tariff status of articles identified as fiberglass
growth stakes used in home gardens for propping up plants and
flowers as they grow. The ruling held that the growth stakes
were classifiable in subheading 7019.90.50, HTSUSA, glass fibers
and articles thereof. Classification in subheading 9817.00.50,
HTSUSA, the duty-free provision for machinery, equipment and
implements to be used for agricultural or horticultural purposes,
was rejected because of a legal note excepting articles of
section XIII (which includes heading 7019) from that
classification.
A San Francisco laboratory report on identical merchandise
from an earlier shipment to the importer indicates that each
article consists of two telescopic plastic tubes, one of which
has a plastic cap and three rubber rings. The tubes were found
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to be composed of phenolic plastic reinforced by woven fiberglass
textile material containing, by weight, 64 percent fiberglass and
34 percent plastic.
ISSUE:
Whether the growth stakes are classifiable in heading 7019
or in chapter 39 as articles of plastic; whether articles
classifiable in chapter 39 are excluded from classification in
subheading 9817.00.50.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) in accordance
with the General Rules of Interpretation (GRIs). GRI 1 states in
part that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the Customs Cooperation
Council's official interpretation of the Harmonized System.
While not legally binding on the contracting parties, and
therefore not dispositive, the ENs provide a commentary on the
scope of each heading of the Harmonized System and are thus
useful in ascertaining the classification of merchandise under
the System. Customs believes the notes should always be
consulted. See T.D. 89-80.
Plastics and articles thereof of Chapter 39 include certain
combinations of plastics and materials other than textiles,
provided they retain the essential character of articles of
plastics. The ENs, at pp. 554 and 555, shed some light on this
statement by indicating in part that products, including tubes,
consisting of glass fibers impregnated with plastics and
compressed together remain in chapter 39 provided they have a
hard, rigid character. (If having more the character of articles
of glass fibers they are classified in Chapter 48 or 70, as the
case may be). Therefore, such articles having a hard, rigid
character may be considered as having the essential character of
articles of plastic. This is paralleled by ENs at p. 944 which
indicate that articles obtained by compressing glass fibers, or
superimposed layers of glass fibers, impregnated with plastics,
are excluded from heading 7019 if having a hard, rigid character
and hence having lost the character of articles of glass fibers
(Chapter 39).
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An examination of the submitted sample, in conjunction with
the cited laboratory report, leads us to conclude that the growth
stakes in issue have a hard rigid character and therefore retain
the character of articles of chapter 39.
HOLDING:
Under the authority of GRI 1, growth stakes represented by
the submitted sample are provided for in heading 3926, there
being no more specific provision in chapter 39 to cover them.
They are classifiable in subheading 3926.90.9090, HTSUSA,
dutiable at the rate of 5.3 percent ad valorem.
Articles so classified are eligible for free entry as
machinery, equipment and implements to be used for agricultural
or horticultural purposes, in subheading 9817.00.50, HTSUSA, upon
compliance with applicable law and regulations (19 CFR 10.131 -
10.138).
The conditions prescribed by the regulations for free entry
are imposed on the importer since it is he who receives the
benefits of the free entry. Thus, neither the importer's one
customer nor the individual end users may relieve him of his
obligations. However, growth stakes of this type are per se
agricultural or horticultural. Considering the nature of these
articles and their level of distribution, it would not be
unreasonable in these circumstances for the concerned import
specialist to regard the importer as having sufficient knowledge
of actual use as to meet the conditions for free entry prescribed
in the regulations.
EFFECT ON OTHER RULINGS:
Ruling 089194 is revoked under the authority of section
177.9(d)(1), Customs Regulations. This notification is directed
to you as representative of Pacific Products, Inc.
Sincerely,
John Durant, Director
Commercial Rulings Division