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HQ 950223


DECEMBER 4 1991

CLA-2:CO:R:C:M 950223 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.90, 7019.90.50, 9817.00.50, HTSUS

Ms. Grace Padilla
W. J. Byrnes & Co.
P.O. Box 280205
San Francisco, California 94128

RE: Growth Stakes, Fiberglass; Plant Stakes, Telescopic, Adjustable; Articles of Glass Fibers; Fiberglass Reinforced Plastics; Agricultural or Horticultural Implements or Equipment; Ruling 089194 revoked

Dear Ms. Padilla:

In a letter dated August 19, 1991, on behalf of Pacific Products Inc., you ask that we reconsider an earlier ruling to you on fiberglass growth stakes because the local import specialist will not accept the classification confirmed in the ruling. A sample was submitted.

FACTS:

The ruling in question, dated June 27, 1991 (089194), addressed the tariff status of articles identified as fiberglass growth stakes used in home gardens for propping up plants and flowers as they grow. The ruling held that the growth stakes were classifiable in subheading 7019.90.50, HTSUSA, glass fibers and articles thereof. Classification in subheading 9817.00.50, HTSUSA, the duty-free provision for machinery, equipment and implements to be used for agricultural or horticultural purposes, was rejected because of a legal note excepting articles of section XIII (which includes heading 7019) from that classification.

A San Francisco laboratory report on identical merchandise from an earlier shipment to the importer indicates that each article consists of two telescopic plastic tubes, one of which has a plastic cap and three rubber rings. The tubes were found
to be composed of phenolic plastic reinforced by woven fiberglass textile material containing, by weight, 64 percent fiberglass and 34 percent plastic.

ISSUE:

Whether the growth stakes are classifiable in heading 7019 or in chapter 39 as articles of plastic; whether articles classifiable in chapter 39 are excluded from classification in subheading 9817.00.50.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) in accordance with the General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the Customs Cooperation Council's official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the notes should always be consulted. See T.D. 89-80.

Plastics and articles thereof of Chapter 39 include certain combinations of plastics and materials other than textiles, provided they retain the essential character of articles of plastics. The ENs, at pp. 554 and 555, shed some light on this statement by indicating in part that products, including tubes, consisting of glass fibers impregnated with plastics and compressed together remain in chapter 39 provided they have a hard, rigid character. (If having more the character of articles of glass fibers they are classified in Chapter 48 or 70, as the case may be). Therefore, such articles having a hard, rigid character may be considered as having the essential character of articles of plastic. This is paralleled by ENs at p. 944 which indicate that articles obtained by compressing glass fibers, or superimposed layers of glass fibers, impregnated with plastics, are excluded from heading 7019 if having a hard, rigid character and hence having lost the character of articles of glass fibers (Chapter 39).

An examination of the submitted sample, in conjunction with the cited laboratory report, leads us to conclude that the growth stakes in issue have a hard rigid character and therefore retain the character of articles of chapter 39.

HOLDING:

Under the authority of GRI 1, growth stakes represented by the submitted sample are provided for in heading 3926, there being no more specific provision in chapter 39 to cover them. They are classifiable in subheading 3926.90.9090, HTSUSA, dutiable at the rate of 5.3 percent ad valorem.

Articles so classified are eligible for free entry as machinery, equipment and implements to be used for agricultural or horticultural purposes, in subheading 9817.00.50, HTSUSA, upon compliance with applicable law and regulations (19 CFR 10.131 - 10.138).

The conditions prescribed by the regulations for free entry are imposed on the importer since it is he who receives the benefits of the free entry. Thus, neither the importer's one customer nor the individual end users may relieve him of his obligations. However, growth stakes of this type are per se agricultural or horticultural. Considering the nature of these articles and their level of distribution, it would not be unreasonable in these circumstances 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.

EFFECT ON OTHER RULINGS:

Ruling 089194 is revoked under the authority of section 177.9(d)(1), Customs Regulations. This notification is directed to you as representative of Pacific Products, Inc.

Sincerely,

John Durant, Director
Commercial Rulings Division


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