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NY A82933



April 25, 1996

CLA-2-91:RR:NC:TP:344 A82933

CATEGORY: CLASSIFICATION

TARIFF NO.: 9107.00.4080; 9817.00.5000

Mr. Charles Laber
Sack & Menendez, Inc.
501 Jackson Street
Tampa, FL 33601

RE: The tariff classification of a 2 Hour Tap Timer from China.

Dear Mr. Laber:

In your letter dated April 18, 1996, on behalf of Aqua-Flo, Inc., you requested a tariff classification ruling.

You have submitted literature and a sample of item number 6600, a 2 Hour Tap Timer. The Tap Timer is designed to be screwed onto a water tap at one end and a hose at the opposite end. The desired watering time is set by turning the dial on the Tap Timer. When the preset time is reached, the timer automatically stops water flow to the hose.

The applicable subheading for the 2 Hour Tap Timer will be 9107.00.4080, Harmonized Tariff Schedule of the United States (HTS), which provides for Time switches with clock or watch movement or with synchronous motor: Valued not over $5 each...Other. The rate of duty will be 15› each + 4% + 2.5›/jewel.

Machinery, equipment and implements to be used for agricultural or horticultural purposes are provided for under the special classification provision of subheading 9817.00.5000, HTS. Upon compliance with the actual use requirements of Section 10.131-139 of the Customs Regulations, the Tap Timer would be classifiable in subheading 9817.00.5000, HTS, and would be free of duty.

You ask whether the required actual use certification under the Customs Regulations may be satisfied by supporting sales records of the importer to lawn and garden related establishments. The conditions prescribed by the Customs regulations are imposed on the importer since it is he who receives the benefits of the free entry. Thus, neither the importer's customers nor individual end users may relieve the importer of his obligations under the regulations. The duty free benefit may only be extended under 9817.00.50, HTS, if an agricultural or horticultural use is known and intended at the time of entry and so used within 3 years of the date of entry. Therefore, you must know at the time of entry what the intended use is and submit proof of actual use within 3 years of the date of entry.

You state that the Tap Timer may be distributed by you to lawn and garden distributors as well as to pool supply stores. Use in lawn and garden applications is horticultural in nature, while use as a pool accessory would not be. Considering the nature of these articles and their levels of distribution, it would not be unreasonable for the concerned import specialist to regard the importer as having sufficient knowledge of actual use as to meet the conditions for free entry prescribed in the regulations. In conclusion, records of sales to lawn and garden distributors would probably satisfy the certification process. It must be emphasized, however, that the horticultural end use must be known and intended at the time of entry. Any subsequent diversion to other uses must be reported to Customs.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Stanley Schwartz at 212-466-5895.

Sincerely,

Roger J. Silvestri

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