CLA-2:CO:R:C:G 083829 JAS
Steven W. Baker, Esq.
Bellsey and Baker
100 California Street, suite 670
San Francisco, California 94111
RE: Nursery and Greenhouse Grower Pots and Hanging Baskets
Dear Mr. Baker:
In your letter of January 31, 1989, on behalf of your
client, Listo Products Ltd., Surrey, B.C., Canada, you inquire
as to the tariff classification of articles from Canada you
refer to generally as plastic planting pots.
FACTS:
The articles in question are grower pots for azaleas and
small shrubs, and hanging baskets for plants and flowers, both
of polyethylene and polypropylene. These articles range from
4 inches in diameter x 3 1/2 inches in height to 15 inches in
diameter x 18 inches in height. They are sold to growers for
use in nurseries and greenhouses to hold plants, shrubs and
flowers and to protect their roots during transport and
display.
The grower pots are disposable after the shrub is
planted, while many hanging baskets are used as permanent
containers. These baskets are plastic containers with
drainage trays and galvanized steel hanging wires formed at
the end into a hook. A steel sleeve coated with zinc is
slipped over the hook portion to provide strength and
resistance to corrosion.
Prior to January 1, 1989, item 666.00, Tariff Schedules
of the United States (TSUS), was a duty-free provision that
provided for a variety of agricultural machines and machinery,
as well as agricultural and horticultural implements not
specially provided for. However, you note that the successor
provisions to item 666.00, TSUS, which now appear in Chapter
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84, Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), provide generally for machines and machinery, but do
not provide for implements. You state that these grower pots
and hanging baskets may now be classifiable under the duty-
free provision for machinery, equipment and implements to be
used for agricultural or horticultural purposes, in subheading
9817.00.5000, HTSUSA.
ISSUE:
Do plastic grower pots and hanging baskets imported for
use in the manner indicated qualify for duty-free treatment as
agricultural or horticultural implements?
LAW AND ANALYSIS:
Subject to certain restrictions, item 666.00, TSUS,
provided among other things for the duty-free treatment of
articles belonging to a class or kind chiefly used as
agricultural or horticultural implements. There is no
equivalent provision in Chapter 84, HTSUSA, for these grower
pots and hanging baskets.
The plastic grower pots in question are classifiable
under the provision for other articles of plastics and
articles of other materials of headings 3901 to 3914, in
subheading 3926.90.9050, HTSUSA. The rate of duty is 5.3
percent ad valorem.
The hanging baskets are composite goods consisting of
different components which are prima facie classifiable in two
or more provisions (in this case in heading 3926 as articles
of plastics and in heading 7326 as articles of iron or steel).
In accordance with General Rule of Interpretation 3(b),
HTSUSA, such goods made up of different components are to be
classified as if they consisted of the component which gives
them their essential character. The plastic container portion
of these hanging baskets encloses and protects the roots from
the time the plants or flowers are dug until they are
purchased and the baskets hung. These hanging baskets are
likewise classifiable in subheading 3926.90.9050, HTSUSA.
However, subheading 9817.00.5000, HTSUSA, provides for
the duty-free entry of machinery, equipment and implements to
be used for agricultural or horticultural purposes. This is
an actual use provision. Notwithstanding the existence of a
competing provision or provisions in the HTSUSA for these
grower pots and hanging baskets, they are classifiable in
subheading 9817.00.5000 if the conditions and requirements
thereof and any applicable regulations are met. See Chapter
98, U.S. Note 1, HTSUSA.
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The grower pots and wire hanging baskets are implements
to be used for a recognized agricultural or horticultural
purpose, and are not otherwise precluded from classification
in subheading 9817.00.5000 by U.S. Notes to Subchapter XVII,
HTSUSA.
HOLDING:
The grower pots and wire hanging baskets in question are
classifiable in subheading 3926.90.9050, HTSUSA, as indicated.
However, these articles may be eligible for free entry
under subheading 9817.00.5000, HTSUSA, upon compliance with
the acutal use requirements of sections 10.131 through and
including 10.139, Customs Regulations.
Sincerely,
John Durant, Director
Commercial Rulings Division