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HQ 083829

May 31, 1989

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


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.


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

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.


Do plastic grower pots and hanging baskets imported for use in the manner indicated qualify for duty-free treatment as agricultural or horticultural implements?


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.

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.


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.


John Durant, Director

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