HQ 0950234 - 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 - United States International Trade Commision Rulings

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HQ 950234

December 4, 1991

CLA-2 CO:R:C:F 950234 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 0601.10.90 1209.30.00 1209.91.80

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.

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
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:

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.

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

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