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NY F87919

June 14, 2000

CLA-2-90:RR:NC:MM:105 F87919


TARIFF NO.: 9026.10.6000

Mr. James F. Morgan
PBB Global Logistics
883-D Airport Park Road
Glen Burnie, MD 21061

RE: The tariff classification of a Plantguard from Canada.

Dear Mr. Morgan:

In your letter, dated May 24, for Multinational Distribution Ltd., you requested a tariff classification ruling.

You submitted no sample, but you did include a color brochure from Multinational.

You state, “The Plantguard and Christmas Tree Guard are self contained devices used primarily to monitor the moisture level of plants or Christmas trees....The Christmas Tree Guard is essentially the same, however, our principal advises us that it emits a five times louder audible signal, and is placed directly in a Christmas tree stand.”

On the other hand the brochure you submitted shows only one device with three functions stated in large print, i.e., “Monitor the Moisture Level in Plants...Monitor for Fluid Leaks or Moisture...Monitor the Water Level in Christmas Tree.” The brochure also states, “Plantguard comes with 3 different and appealing tops; a butterfly, a ladybug and a bumblebee. This collectability feature is sure to add strength to Plantguard sales.”

Since you do not explain the contradiction, we take it that your request is not for two different items, but one item with 3 functions and 3 decorative options.

We note that you cite NYRL 894434 as precedent for classifying this item in 9027.80.80. However, that import apparently only measured moisture in soil, not water levels as well. Also, the ruling does not explain why the item was not classified as a hygrometer in 9025, which, per Explanatory Note D to Harmonized System (HS) Heading 9025 is “used to determine the moisture content of the air, other gases, or solid matter.”

Your item is clearly not included in 9027 as Instruments and Apparatus For Physical or Chemical Analysis (For Example, Polarimeters, Refractometers, Spectrometers, Gas or Smoke Analysis Apparatus).

In this case, the import does not provide any measurement of the moisture content of the soil; it only emits a low audio signal if it goes below an unspecified level so it is not a hygrometer of 9025.

However, the functions of monitoring for leaks from containers and the water level for Christmas trees is actually based on the fact that the device can float and when the water level is below 2 inches deep, it will apparently touch bottom, which will cause it to emit a low audio signal. It does not directly monitor for leaks or dryness in the tree, but alerts the user that the water level is below 2 inches, which implies, if it has been placed in the appropriate location, either that water is leaking out or the tree has absorbed most of the water that was present.

It is thus reasonable to consider it as an apparatus for checking the level of a liquid in Heading 9026. The General Explanatory Note to that Heading indicates that these devices may be fitted with a signaling device. Also note NYRL D80904-105, 8-11-98, regarding a tree water monitor.

To the extent it might be considered to be a composite good of a hygrometer of 9025 and a liquid level checker of 9026, the 9026 would prevail since it is appears later in the HS, noting HS General Rule of Interpretation 3-c.

For its checking of the water level function, the device does not appear to depend on an electrical phenomenon that varies according to the water level, noting Additional U.S. Note 2 to HTS Chapter 90. The only change takes place when it hits bottom when the water level falls below 2 inches

The applicable subheading for this item will be 9026.10.6000, Harmonized Tariff Schedule of the United States (HTS), which provides for non-“electrical” apparatus for measuring or checking the level of liquids. The general rate of duty will be free.

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 James Sheridan at 212-637-7037.


Robert B. Swierupski
National Commodity

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