CLA-2 CO:R:C:M 089194 JMH
Ms. Grace Padilla
W.J. Byrnes & Co.
P.O. Box 280205
San Francisco, CA 94128
RE: Fiberglass flower and/or plant growth stakes; props;
machinery, equipment and implements for use in agricultural
and horticultural purposes; Section XXII, Chapter 98,
Subchapter XVII, Note 2(f); glass fibers and articles
thereof
Dear Ms. Padilla:
Your April 1, 1991, request for a ruling regarding the
implementation of subheading 9817.00.50, Harmonized Tariff
Schedules of the United States Annotated ("HTSUSA") has been
referred to this office.
FACTS:
The articles in question are dark green fiberglass growth
stakes for use in the propping up of plants and flowers. The
stakes range in length from 36 inches to 60 inches and may be
adjusted in height as the plant or flower grows. Pacific
Imports Inc. imports these growth stakes and sells them to
Gardener's Eden. Gardener's Eden then sells the props to the end
purchaser who will use the props.
ISSUE:
Must the certification of proof-of-use required under
heading 9817.00.50, HTSUSA, be supplied by Pacific Imports Inc.,
or may Gardener's Eden supply the necessary certification?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUSA is
governed by the General Rules of Interpretation ("GRIs"). GRI 1,
HTSUSA, 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.." The heading which most
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specifically describes the fiberglass growth stakes is heading
7019, HTSUSA. The appropriate classification for the growth
stakes is subheading 7019.90.50, HTSUSA, as "Glass fibers
(including glass wool) and articles thereof (for example, yarn,
woven fabrics)..." This is the classification for the growth
stakes from chapters 1-97, HTSUSA, the international portion of
the tariff. Chapters 1-97 are utilized by all countries which
have adopted the HTSUSA. Some articles may enter the United
States with two classifications, one from the international
chapters and one from a chapter implemented only in the United
States.
The second heading in question, heading 9817.00.50, is found
within Chapter 98, HTSUSA. Chapter 98 is a special chapter that
applies only to goods imported into the United States. Heading
9817.00.50 states the following:
9817.00.50 Machinery, equipment and implements to
be used for agricultural or
horticultural purposes...
Headquarters Ruling Letter 086211 ("HQ 086211"), dated March
24, 1990, and Headquarters Ruling Letter 087076 ("HQ 087076"),
dated June 14, 1990, promulgated a three-part test for the
determination of when an item is "machinery, equipment, and
implements" under heading 9817.00.50. The three steps which
must be met are:
(1) The article in question must not be excluded from
the heading under Section XXII, Chapter 98,
Subchapter XVII, U.S. Note 2, HTSUSA.
(2) The article to be classified must be the article
that performs the agricultural or horticultural
pursuit in question. If the article only performs
a portion of that pursuit, it is a part, not
machinery, equipment or an implement within the
heading.
(3) The article must have the actual use certification
required under 19 C.F.R. 10.138.
The first test is whether Section XXII, Chapter 98,
Subchapter XVII, Note 2(f), HTSUSA, excludes the fiberglass
growth stakes. Section XXII, Chapter 98, Subchapter XVII, Note
2(f), HTSUSA, excludes articles classified in Section XIII
(except heading 6808 and subheadings 6809.11, 7018.10, 7018.90
and 7019.20) of the tariff from classification within heading
9817.00.50. Subheading 7020.00.00 is within Section XIII. Thus,
the fiberglass growth stakes are excluded from classification
within heading 9817.00.50. Your question regarding the
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certification requirements for proof of actual use is moot. The
articles which you import are not entitled to duty free entry
under heading 9817.00.50.
HOLDING:
The articles in question are fiberglass growth stakes for
use with plants and flowers. The growth stakes are classified in
subheading 7019.90.50, HTSUSA, as "Glass fibers (including glass
wool) and articles thereof (for example, yarn, woven fabrics)..."
Subheading 7019.90.50 is within Section XIII. Articles of
Section XIII are excluded from classification within heading
9817.00.50 by Section XXII, Chapter 98, Subchapter XVII, Note
2(f). Thus, the fiberglass growth stakes are not entitled to
duty free entry under 9817.00.50. Questions concerning the
actual use certification are irrelevant.
Sincerely,
John Durant, Director
Commercial Rulings Division