HQ 083829: Nursery and Greenhouse Grower Pots and Hanging Baskets

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                          HQ 083829
                                      May 31, 1989

             CLA-2:CO:R:C:G    083829 JAS

             CATEGORY:   Classification

             TARIFF NO.: 3926.90.9050; 9817.00.5000

             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
















                                     - 2 -

             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.
             











                                       - 3 -


                  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