CLA-2 RR:CR:GC 961862ptl

Port Director U.S. Customs Service 189 West Service Road Champlain, NY 12919

RE.: IA 42/96; Various Plastic Planters, Urns, Tubs, Watering Cans and Bird Baths; HQ 083517, 955934, 957495.

Dear Port Director:

This is in response to your memorandum of November 13, 1996, forwarding a request for Internal Advice (IA42/96) submitted by AEI-Carr on behalf of T.P.I. Plastics Inc., concerning the classification of various plastic planters, urns, tubs, watering cans and bird baths under the Harmonized Tariff Schedule of the United States (HTSUS). We regret the delay.

FACTS:

All the articles under consideration are made from injection-molded or blow-molded high-density polyethylene plastic.

Two samples of planters were provided. One is in the shape of a swan body approximately 20" long and 8" high. The head and curved neck of the swan increase the overall height of the article to approximately 16". The body is hollow so that a plant can be placed in the article and there is a small drain hole in the article. The swan planter weighs 13.5 oz. The other planter provided is referred to as “Gothic”. This planter is approximately 10" high with a 12" diameter. The sides have a stylized lion face pressed onto the surface. This planter has no drain hole. The “Gothic” planter weighs 15.5 oz. The sample urn is a two-part, hourglass shaped article, approximately 13" high and 15" across at its top. The outside surface of both segments are gently ribbed. The urn has no drainage hole. The neck at the base of the upper segment of the urn fits into the neck of the bottom. The sample urn weighs 1 lb, 5.5 oz.

The sample tub is a round container, approximately 16" in diameter and 8" high with a plain, rough textured exterior. The tub rests on three feet. It weighs 1 lb, 4.5 oz.

The sample plastic watering can is approximately 13" high, 7" wide and 17" long with an opening on the top surface. The article has handles with simulated cordage wrapping on both the top and the side opposite the spout to facilitate holding the can while pouring. The base of the can has a 2" raised, simulated basket weave pattern. A detachable sprinkler head screws onto the pouring spout. The entire article weighs 12 oz.

The sample bird bath is a two piece article. The approximate dimensions are: 24" high, 17" wide at the top, with 11" base. Stylized flowers have been molded into the surface of the concave potion of the top of the article. Other floral designs appear on the exterior of the base segment. The two segments have been molded so that the top can be securely fastened to the base by twisting matching nodes and grooves. The entire article weighs 2 lbs, 15 oz.

A catalogue provided with the samples shows the various articles being used with plants in them in what appears to be outdoors settings.

ISSUE:

What is the classification of various plastic planters and other articles?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS headings under consideration are as follows:

3924 Tableware, kitchenware, other household articles and toilet articles, of plastics:

* * *

3924.90 Other:

* * *

3924.90.5500 Other

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:

* * *

3926.40.0000 Statuettes and other ornamental articles..

9403 Other furniture and parts thereof

* * *

9403.70 Furniture of plastics:

9403.70.80 Other

9403.70.8010 Household

Tariff terms are to be construed in accordance with their common and commercial meanings which are presumed to be the same (Nippon Kogaku, Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380 (1982); see also Nylos Trading Company v. United States, 37 CCPA 71, 73, C.A.D. 423 (1949), and Winter-Wolff, Inc. v. United States, CIT Slip Opinion 98-15 (Customs Bulletin and Decisions, March 25, 1998, vol 32, no. 12, 71 at 74, “When, however, a tariff term is not clearly defined by the statute or its legislative history, it is also fundamental that the correct meaning of the tariff term is ‘presumed to be the same as its common or dictionary meaning in the absence of evidence to the contrary’”). The dictionary definition of “furniture” is “the things, usually movable, in a room, apartment, etc. which equip it for living, as chairs, sofas, tables, beds, etc.” (Webster’s New World Dictionary, 3rd Coll. Ed. (1988)). EN 94.03 lists many exemplars of furniture, including exemplars similar to those in the dictionary definition of furniture; however, in spite of the many exemplars listed, planters, watering cans and bird baths are not listed (i.e., EN 94.03 lists, among other things, the following: Cupboards, show-cases, tables, telephone stands, writing-desks, escritoires, book-cases, and other shelved furniture; cabinets, linen chests, bread chests, log chests, chests of drawers, tallboys, pedestals, plant stands, dressing tables, pedestal tables, wardrobes, linen presses, hall stands, side-boards, dressers, food-safes, bedside tables, various beds, needlework tables, foot stools, fire screens, draught-screens, pedestal ashtrays, music cabinets, music stands or desks, play-pens, serving trolleys, and other articles).

Not only are the articles under consideration not listed in the above exemplars, such articles of other materials are clearly indicated by the EN to be classified as other than furniture of Chapter 94. See, in this regard, EN 68.02, which states that flower pots of constructional stones are included in heading 6802, HTSUS; EN 68.10, which states that fountain basins, flower-pots, and architectural or garden ornaments of cement, concrete, or artificial stone are included in heading 6810, HTSUS; see also EN 68.11 (flower-pots) and EN 69.14 (non-decorative flower-pots). Based on this tariff treatment, the dictionary meaning of furniture, and the ENs for furniture of Chapter 94, HTSUS, we conclude that the articles are not furniture of that Chapter.

The EN to heading 39.24 states:

“This heading covers the following articles of plastics:

* * *

(C) Other household articles such as ... dustbins, buckets, watering cans, ...”

On the basis of this EN, the watering can is classified in subheading 3924.90.5500, HTSUS, which provides for tableware, kitchenware, other household articles and toilet articles, of plastics: other: other.

The articles covered in heading 3924, HTSUS, are functional articles used both inside and in close proximity to the house, such as in the garden. Planters and urns may be used as containers which hold flower pots or they may have plants placed directly in them without any intervening lining. The fact that most of the articles under consideration do not have drainage holes indicates that they are intended to be used as decorative containers into which potted plants will be placed. Webster’s II New Riverside University Dictionary (1984) defines a planter as “... 4. A decorative container for house plants.” Customs has consistently held that planters and flower pots, although they do have decorative elements, are primarily functional articles and that they are classified according to their constituent material. See HQ 083517, dated May 1, 1989, HQ 955934, dated July 1, 1994 and HQ 957495, dated May 30, 1995. Accordingly, the planters, urns, and tubs are classified in subheading 3924.90.5500, HTSUS, which provides for tableware, kitchenware, other household articles and toilet articles, of plastics: other: other.

The provision for ornamental articles of plastic in subheading 3926.40.0000, HTSUS, includes statuettes and other ornamental articles. We believe that the bird bath, while decorative, is too functional to be classified in subheading 3926.40.0000, HTSUS. Accordingly, since the bird bath is made of plastic and is used in the vicinity of the home, it is classified in subheading 3924.90.5500, HTSUS, which provides for tableware, kitchenware, other household articles and toilet articles, of plastics: other: other.

HOLDING:

Plastic planters, urns, tubs, watering cans and bird baths are classified in subheading 3924.90.5500, HTSUS, which provides for tableware, kitchenware, other household articles and toilet articles, of plastics: other: other.

You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director Commercial Rulings Division