CLA-2 R:C:M 957495 JAS
District Director of Customs
1000 2nd. Ave., Rm. 2200
Seattle, Wa. 98104
RE: PRD 3004-94-100167; Plastic Hanging Flower Baskets,
Household Articles of plastics, Subheading 3924.90.55;
Agricultural Implements, Subheading 9817.00.50, Actual Use;
HQ 083829, HQ 955934
Dear District Director:
This is our decision on Protest No. 3004-94-100167, filed
against your classification of certain plastic flower pots. The
entry under protest was liquidated on May 27, 1994, and this
protest timely filed on August 15, 1994.
FACTS:
The articles under protest are described on the commercial
invoice as TRI200 HB Terra Roma Green. There are no samples nor
pictures or literature on this merchandise, although the
designation "HB" apparently refers to hanging basket. The
narrative from the local import specialist refers to decorative
plastic pots sold individually to consumers for personal use in
homes, offices and other places where the purpose is not the
growing of plants but the decorative display of individual
plants.
The entry was liquidated under a provision of heading 3924
for other household articles of plastics. Protestant maintains
the pots are used for horticultural purposes and that the
provision in subheading 9817.00.50, HTSUS, machinery, equipment
and implements to be used for agricultural or horticultural
purposes applies.
The provisions under consideration are as follows:
3924 Tableware, kitchenware, other household
articles and toilet article, of plastics:
3924.90 Other:
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3924.90.55 Other...1.4 percent from Canada
* * * *
3926 Other articles of plastics and articles of
other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.98 Other...1.5 percent from Canada
* * * *
9817.00.50 Machinery, equipment and implements to be used
for agricultural or horticultural purposes
...Free
ISSUE:
Whether flower pots of plastic are goods of heading 3924 or
heading 3926; whether they are agricultural or horticultural
implements for tariff purposes.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) 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.
In HQ 955934, dated July 1, 1994, certain plastic flower
pots were held to be classifiable in subheading 3924.90.55,
HTSUS, because their size and manner of depiction in brochures
led to the conclusion they were to be for residential use. These
articles from designated beneficiary developing countries were
free of duty under the Generalized System of Preferences (GSP).
The tariff status of certain grower pots and plastic hanging
baskets with steel hanging wires as other articles of plastics,
in subheading 3926.90.90 (now 98), HTSUS, was confirmed in HQ
083829, dated May 31, 1989, a ruling addressed to the shipper of
the merchandise under protest here. These articles were sold to
growers for use in nurseries and greenhouses to hold plants,
shrubs and flowers to protect their roots during transport and
display. The grower pots were said to be disposable after the
plant or shrub was planted while many of the hanging baskets were
used as permanent containers.
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It appears that your office is not regarding decorative
plastic flower pots and/or hanging baskets of the type used in
the home or office as agricultural or horticultural implements;
rather, you are restricting the provision in heading 9817.00.50,
HTSUS, to such pots and baskets used in commercial nurseries and
greenhouses. As we understand it, the distinction sought to be
applied in this case is whether the pots or baskets are used to
grow plants or to display them.
In our opinion, it is not relevant whether plastic flower
pots and hanging baskets are more accurately described in heading
3924 or heading 3926 because the provisions of Chapter 98 are not
subject to the rule of relative specificity. Chapter 98, U.S.
Note 1, HTSUS. Therefore, notwithstanding the existence of a
competing provision or provisions, heading 9817.00.50, HTSUS,
applies if the conditions and requirements thereof and any
applicable regulations are met. The flower pots and hanging
baskets are not precluded from classification in heading
9817.00.50, HTSUS, by any of the exclusions listed in Chapter 98,
Subchapter XVII, U.S. Note 2, HTSUS. The issue, then, is whether
the flower pots and hanging baskets are actually used in a
recognized agricultural or horticultural pursuit. In common
meaning, the term horticulture refers to the cultivation i.e.,
the preparation or working of the earth to promote the growth or
development of flowers, fruits, vegetables or ornamental plants.
The Random House Dictionary of the English Language (Unabridged
ed. 1973).
For purposes of heading 9817.00.50, HTSUS, it is an
artificial distinction to regard plastic flower pots and hanging
baskets as horticultural implements simply based on their use in
nurseries and greenhouses, or whether they are used to grow
rather than display plants. Certainly, plants and flowers are
capable of being developed or grown in homes and offices as well.
We note that many of the hanging baskets in HQ 083829 were used
as permanent containers. For these reasons, the plastic flower
pots and hanging baskets under protest are implements to be used
in a recognized horticultural pursuit.
HOLDING:
The plastic flower pots and/or hanging baskets designated
TRI200 HB Basket Terra Roma Green, are classifiable in subheading
3924.90.55 or subheading 3926.90.98, as appropriate. However,
these articles may be eligible for free entry under subheading
9817.00.50, HTSUS.
The protest should be ALLOWED upon compliance with the
actual use requirements of sections 10.131 through and including
10.139, Customs Regulations. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, you should mail this - 4 -
decision, together with the Customs Form 19, to the protestant no
later than 60 days from the date of this letter. Any
reliquidation of the entry or entries in accordance with the
decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division