CLA-2 CO:R:C:F 950234 ALS
Mr. Ed Baker
A. N. Deringer, Inc.
30 West Service Road
Champlain, New York 12919-9703
RE: Micro-garden Composed of Miniature Plastic Pot and Saucer,
Peat Moss Pellet, Seed/bulb Packet and Instructions Packaged
in a 1 1/2 Cubic Inch Paper Box Which is Color Coded to
Show the Color of the Mature Flower or Fruit
Dear Mr. Baker:
This is in response to your letter of August 5, 1991, to our
Champlain Office requesting a binding ruling for micro-gardens
from Holland. Your request was referred to our New York Seaport
Area Office which, in turn, referred it to this office. Samples
of the complete article and several boxes, showing the micro-
garden varieties, were provided.
FACTS:
The article under consideration consists of a miniature
plastic flower pot with a 1 3/8 inches inside diameter at its
widest portion, the top, and a 7/8 inch diameter at its bottom.
A saucer, 1 3/8 inches in diameter which snaps onto the above pot
by means of a peg in the inside center of the saucer which fits
into a hole in the bottom center of the pot. The article also
contains a peat moss pellet, approximately 7/8 inch in diameter,
which serves as a growing medium when water is added. A packet
of seeds or bulbs, depending on the item to be grown, is included
with the article. The above items are included in a 1 1/2 cubic
inch paper box which depicts the mature flower, vegetable, etc.
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The box, whose top closure looks like clover, bears the color of
the article in its mature state.
ISSUE:
What is the classification of micro-gardens which contain
seeds or bulbs, a miniature flower pot and saucer and a growing
medium packaged in a miniature paper box ready for retail sale?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in
accordance with the terms of the headings and any relative
section and chapter notes. If GRI 1 fails to classify the goods,
and if the heading and legal notes do not otherwise require, the
remaining GRI's are applied taken in order.
In reviewing the headings eligible for classification of
these goods, we noted that the components are classifiable in 5
different headings of the HTSUSA. The printed packaging is
classifiable in 4819, the plastic pot with saucer in 3924, the
seeds in 1209, the bulbs in heading 0601, and the peat pellet in
heading 2703. The components are put up together for the
specific purposes of growing a plant.
There is no specific heading that refers to the article in
its completed form. Since each of the headings refer to only a
part of the article, we referred to GRI 3 which, pursuant to
GRI 2, provides that goods classifiable under 2 or more headings
shall be classified according to the provisions of GRI 3.
Although GRI 3(a) provides that the heading with the most
specific description shall be preferred to other headings, when
2 or more headings refer to a part only of the materials or
substances contained in mixed or composite goods, the headings
are to be considered as equally specific. We found that to be
the case with this article so it could not be classified under
that GRI.
We next referred to GRI 3(b) which covers mixtures,
composite goods consisting of different materials or made up of
different components and goods put up in sets for retail sale
which cannot be classified by reference to GRI 3(a). In
considering whether the subject articles are sets for retail sale
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in accord with GRI 3(b), we evaluated the article against the
specified requirements which a product must meet to qualify for
classification thereunder. The assembled articles must:
(a) consist of a least 2 different articles which are
prima facie classifiable in different headings;
(b) consist of products or articles put up together to meet
a particular need or carry out a specific activity; and
(c) are put up in manner suitable for retail sale directly
to user without repacking.
We believe that the articles under consideration meet all
those requirements. The individual micro-gardens are clearly
packaged to be sold at retail, they are composed of at least 2
different articles classifiable in different headings, and they
are designed to permit an interested person to grow flowers, etc.
from a seed or bulb.
GRI 3(b) further provides that such goods are to classified
as if they consisted of the material or component which gives
them their essential character. According to the Explanatory
Notes to the Harmonized System which represent the opinion of the
classification experts at the international level, factors such
as bulk, weight and value may be considered in determining the
essential character.
According to the information provided in the ruling request,
the relative percentage of the article by weight and by value are
as follows:
% by % by
Weight Value
Miniature plastic planting pot
and saucer 42% 22%
Peat Moss Pellet 28% 17%
Seed packet 13% 35%
Instruction sheet 4% 2%
Printed package 13% 24%
Presuming that a bulb packet represents the same percentage
by weight and percentage by value of the total article as the
seed packet and based on the foregoing information, we believe
that the essential character of the article is the seed or bulb
contained in each particular box.
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Accordingly, the boxes containing the bulbs should be
classified under the provisions for bulbs, tubers, tuberous
roots, corms, crowns and rhizomes, dormant, in growth or in
flower, in heading 0601, HTSUSA. The sets containing seeds
should be classified under the provisions for seeds, fruits and
spores, of a kind used for sowing in heading 1209, HTSUSA.
HOLDING:
The micro-gardens are classifiable according to seed or bulb
contained in the individual package. Oxalis or "Four Leaf
Clover" (bulbs) would be classifiable in subheading 0601.10.90,
HTSUSA. Viola or "wood violet" (seeds) would be classifiable in
subheading 1209.30.00, HTSUSA. Rosa rugosa or "wild roses"
(seeds) would be classifiable in subheading 1209.30.00, HTSUSA.
Myosotis or "Forget-Me-Nots" (seeds) would be classifiable in
subheading 1209.30.00, HTSUSA. Lycopersicum esculentum "cherry
tomatoes" (seeds) would be classifiable in subheading 1209.91.80,
HTSUSA. The articles classifiable in subheading 0601.10.90,
HTSUSA, would be subject to a general rate of duty of 5.5 per
cent ad valorem. The articles classifiable in subheading
1209.30.00, HTSUSA, would be subject to a general rate of duty of
2.2/kg. The articles classifiable in subheading 1209.91.80,
HTSUSA, would be subject to a general rate of duty of 3.3/kg.
Sincerely,
John Durant, Director
Commercial Rulings Division