CLA-2 RR:CR:TE 963840 mbg
Ms. Leila Hillier
United Global Sourcing, Inc.
269 Executive Drive
Troy, MI 48083- 4504
RE: Reconsideration of NY F83565; Classification of a tree stake kit
Dear Ms. Hillier:
This is in response to your letter, dated March 16, 2000, wherein you request reconsideration of New York Ruling (NY) F83565, regarding classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a tree stake kit made in China. NY F83565, issued to Phoenix International which was acting on your behalf, classified the tree stake kit in 5607.49.1500, HTSUSA, which provides for, inter alia, twine, rope and cordage of polypropylene. You requested Customs reconsider this ruling as well as the applicability of heading 9817, HTSUSA, to your merchandise.
FACTS:
The merchandise submitted is a tree stake kit which is intended to provide support during the growth of a young tree. The kit is comprised of four separate components: three wooden conical stakes, each measuring approximately one foot in length, with a ridged top containing a drilled hole for inserting a metal eyelet and a tapered bottom; a piece of nonwoven fabric, approximately two and half inches in width and four feet in length; a 3 ply twisted rope made of polypropylene measuring approximately four millimeters in diameter; and three metal eye loops. All of the components are manufactured in China and packaged together for retail sale.
ISSUE:
What is the proper classification of the tree stake kit?
LAW AND ANAYLSIS:
Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.
For the subject merchandise at issue, consideration must be given to each component of the tree stake kit. The kit consists of a textile rope which is classifiable under the heading which provides for rope (heading 5607, HTSUSA); a wood component which is classifiable under the heading which describes other articles of wood (heading 4421, HTSUSA); a metal fastener component which is classifiable under the heading which describes other articles of iron and steel (heading 7326, HTSUSA); and also a textile fabric component which is classifiable as nonwoven fabric (heading, 5603, HTSUSA).
GRI 3 provides, in pertinent part:
When by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
(b) 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 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
When interpreting and implementing the HTSUSA, the Explanatory Notes (“EN”) to the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUSA. See, T.D. 89 90, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). The guidance of the ENs is helpful in the instant analysis.
GRI 3(a), states in pertinent part that “when two or more headings each refer . . . to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description than the others. In such cases, the classification shall be determined by Rule 3(b) or 3(c).” In this regard, EN Rule 3(b)(X), p.5, states in pertinent part that “ ‘goods put up in sets for retail sale’ shall be taken to mean goods which consist of at least two different articles which are, prima facie, classifiable in different headings. . . .; consist of products or articles put up together to meet a particular need to carry out a specific activity; and are put up in a manner suitable for sale directly to users without repacking. . . .”
The merchandise under consideration is such that the components are adapted to each other and are mutually complimentary in their intended function of supporting a tree. Furthermore, the components are used as a tree support only when used in conjunction with one another and would not be sold separately for such a purpose. Therefore, for classification purposes the components are considered to form a “set” whose intended purpose is to support a tree. Resort then, to GRIs 3(b) and 3(c) must be made in order to classify the product under the HTSUSA.
GRI 3(b) states that in all these cases the goods are to be “classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.”
As to which component imparts the essential character to the Tree Stake Kit, the relevant ENs direct Customs to consider the nature of each component in the set, its weight or value, or its role in relation to the use of the good. EN Rule 3(b)(VIII), p. 4, gives guidance, stating that “the factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” Of the four components which constitute the Tree Stake Kit, it appears that the metal eyelets and textile fabric have less significance in the overall purpose and function of the kit than the rope and wooden stakes and therefore, are not worthy of consideration in determining the essential character of the kit.
We recognize that considerations as to value, construction and diversification of use, all may militate in favor of a conclusion that either the rope or the wooden stakes could impart the essential character. Based upon the information you provided Customs, the value breakdown for the Tree Stake Kit is as follows:
$0.14 each wooden stake
$0.05 polypropylene rope
$0.06 each eye bolt
$0.05 tree wrap
Given that the value of the wooden stakes, while overall inexpensive, is substantially greater than any other component in the tree stake kit, this value breakdown would support an assertion that the wooden stakes are the essential character of the tree stake kit.
Moreover, upon consideration of the “role of the constituent material in relation to the use of the goods, ” it would appear that the wooden stakes are manufactured to be used exclusively for the tree stake kit. The rope could be sold separately on the market exclusive of the kit and also appears to not have any specially manufactured characteristics for aiding in the supportive purpose of the tree stake kit. Whereas, the wooden stakes have a tapered bottom for easy insertion into the ground and also, a ridged top containing an angled drilled hole for inserting a metal eyelet, which according to the packaging advertisement and instructions will aid in mowing and trimming around the tree.
Under GRI 3(b), therefore, we find that the article is to be classified according to the wooden stake in heading 4421, HTSUSA, as “other articles of wood.”
You assert that the Tree Stake Kit “complies with the actual use requirements that provides for implements to be used for agricultural or horticultural purposes.” Subheading 9817.00.50, HTSUSA, grants duty free treatment for “Machinery, equipment and implements to be used for agricultural or horticultural purposes. . .” To fall within this special classification a three part test must be met. First, the articles must not be among the long list of exclusions to heading 9817, HTSUSA, under Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, HTSUSA. Secondly, the terms of the headings must be met in accordance with GRI 1, which provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Thirdly, the merchandise must meet the conditions required under 19 C.F.R. 10.133. (See HQ 950674, dated January 30, 1992.)
The first part of the test is to determine whether the Tree Stake Kit is excluded from heading 9817, HTSUSA. The tree stake kit is classifiable in heading 4421, HTSUSA, and as such is not eo nomine excluded from classification in heading 9817, HTSUSA, by operation of Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2. The first part of the test is therefore satisfied.
The second part of the test calls for the tree stake kit to be included within the terms of the heading as required by GRI 1. The tree stake kit must be “machinery”, “equipment” or “implements” used for “agricultural or horticultural purposes.” For this part of the test, the initial determination to be made is what agricultural or horticultural pursuit is in question.
Inasmuch as heading 9817, HTSUSA, does not provide a definition for “agricultural,” the tariff term must be considered in accordance with its common and commercial meaning. Nippon Kogaku (USA), Inc. v. United States, 673 F.2d 380 (1982). To ascertain the common [and commercial] meaning [of a tariff term], in addition to relying upon its understanding of the terms used, the courts may consult dictionaries, lexicons, the testimony of record, and other reliable sources of information as an aid to its knowledge. Pistorini & Co., Inc. v. United States, 461 F. Supp. 331, 332 (1978). In doing so, Customs accepts that “agriculture” is defined as “the science or art of cultivating the soil, harvesting crops, and raising livestock.” Webster’s New World Dictionary 26 (3rd College Ed. 1988). Furthermore, “horticulture” is defined as “the art or science of growing flowers, fruits, vegetables, and shrubs, esp. in gardens or orchards.” Id. at 652.
The intended purpose of the tree stake kit is to stabilize a young tree while growing and since the product will facilitate the growth of the tree, the product can be deemed useful for agricultural or horticultural purposes. Customs has classified a rubber band type item used to stabilize young trees in subheading 9817.00.5000, HTSUSA, contingent upon meeting the actual use requirements of 19 C.F.R. § 10.131- §10.139. (See NY C81074, dated Nov. 19, 1997). Therefore, the requirements of the second part of the test is satisfied.
The third part of the test is that the requirements of 19 CFR §10.131- §10.139 be met. If these actual use requirements are satisfied, the third part of the test will be met.
HOLDING:
NY F83565 is hereby revoked.
The merchandise under consideration is classified in subheading 4421.90.9840, HTSUSA, which provides for “other articles of wood: other: other: other:other.” The general column one duty rate is 3.3 percent ad valorem. However, the merchandise under consideration is eligible for duty free treatment under subheading 9817.00.5000, HTSUSA, provided the actual use requirements of section 10.131-10.139, Customs Regulations (19 CFR 10.131-10.139), are satisfied.
Sincerely,
John Durant, Director
Commercial Rulings Division