HQ 0089194 - 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 - United States International Trade Commision Rulings

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HQ 089194

June 27, 1991

CLA-2 CO:R:C:M 089194 JMH

CATEGORY: CLASSIFICATION

TARIFF NO.: 7019.90.50

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
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
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

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