CLA-2 OR:RR:CTF:TCM H188375 RSD
Mr. Ole Skaaning
Ken Hamanaka Company, Inc. 5777 West Century Blvd.
Suite 760
Los Angeles, California 90045
RE: Modification of NY N132377, Eligibility for Duty-Free Entry of the EZ Tree Bar under 9817.00.50, HTSUS, Chapter 98, U.S. Note 2(ij)
Dear Mr. Skaaning :
This is in reference to New York Ruling Letter (NY) N132377 issued by the Customs and Border Protection (CBP) National Commodity Specialist Division on December 7, 2010 , regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of the EZ Tree Bar from China. The ruling held that the EZ Tree Bar was classified in subheading 7326.90.85, HTSUS, and would also be eligible for duty-free entry under subheading
9817.00.50, HTSUS. We have reconsidered this decision and for the reasons set forth below, have determined that although the product would still be classified in subheading 7326.90.85, HTSUS, its eligibility for duty-free entry under subheading 9817.00.50, HTSUS is not correct.
FACTS:
The item concerned is referred to as a EZ Tree Bar, which is used to hold a tree in place while it grows. Accord ing to the facts set forth in NY N132377, the product is composed of two, nine inch galvanized steel tubes. Located on each end of each tube is a slit where an adjustable clamp is inserted. The larger tube
contains holes drilled at one inch intervals and also contains a larger diameter than the other tube. The smaller tube is inserted into the larger tube and
contains a push lock that will allow the tube to be locked into place into one of the holes of the larger tube, thus making the EZ Tree Bar adjustable.
The adjustable bar comes with a protective strip comprised of foam material. It measures approximately 12 inches in length by 1 inch in width and is 1/4 inch thick. The protective strip is self-adhesive on one side and may be cut to size. The strip is secured to the clamp to protect the newly planted tree from damage. The clamp comes completely assembled except for the protective strip which is separately packaged in the retail box. One side of the bar is attached to a pole and the other side of the bar is attached to the newly planted tree so that the tree is held in place.
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the HTSUS. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRls). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRls taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis , to the GRls 1 through 5.
The HTSUS subheadings under consideration are as follows :
7326
7326.90
Other articles of iron or steel: Other:
Other:
Other:
7326.90.85 Other.
9817.00.50 Machinery, equipment and implements to be used for agricultural or horticultural purposes...
In NY N132377, CBP ruled that the applicable subheading for the EZ Tree Bar will be 7326.90.85, HTSUS, which provides for other articles of iron or steel, other, other, other, other. After review, we affirm that this primary classification of the EZ Tree Bar is correct.
However, NY N132377 also found that the EZ Tree Bar would qualify for duty-free entry under subheading 9817.00.50, HTSUS. Subheading 9817.00.50,
HTSUS, provides for the duty-free entry of machinery, equipment and implements to be used for agricultural or horticultural purposes. This is a
provision based on actual use. See Headquarters Ruling Letter (HQ) 953152, dated March 15, 1993. A tariff classification controlled by the actual use to which the imported goods are put in the United States is satisfied only if such use is intended at the time of importation, the goods are so used and proof thereof is furnished within three years after the goods are entered. See Additional U.S. Rule of Interpretation 1(b), HTSUS. U.S. Note 2(ij) to Chapter 98 Subchapter XVII states in part, that the provisions of subheading 9817.00.50, HTSUS does not apply to articles classified in Chapter 73, HTSUS, with certain exceptions.
Subheading 7326.90, HTSUS is not one of the exceptions.
We have held that before an article may be classified in subheading
9817.00.50, HTSUS, and qualify for the agricultural use duty exemption it must first satisfy each part of the following three-part test, taken in order.
the articles must not be among the long list of exclusions to subheading 9817.00.50 or 9817.00.60 under Section XXll, Chapter 98, Subchapter XVII, U.S. Note 2;
the terms of subheading 9817.00.50 must be met in accordance with GRI 1; and
the merchandise must meet the actual use conditions required in accordance with sections 10.131 10.139 of the CBP Regulations (19 CFR 10.131 10.139).
If a good fails any part of the test, then recourse would have to be made to its primary classification. See HQ 086211, dated March 24, 1990.
Therefore, because the EZ Tree Bar is classified in subheading 7326.90 HTSUS, it is not eligible for duty-free entry under 9817 .00.50, HTSUS. Thus, it will be classified according to its primary classification in subheading 7326.90.85 , HTSUS.
HOLDING:
The EZ Tree Bar is classified in subheading 7326.90.85 , HTSUS which provides for articles of iron or steel, other, other, other, other. In accordance with
U.S. Note 2(ij) , articles class ifiable in this provision are not eligible for duty-free entry under heading 9817.00.60, HTSUS. Therefore , the EZ Tree Bar is not eligible for duty-free entry under subheading 9817.00.60.
EFFECT ON OTHER RULINGS
NY N183835 dated December 7, 2010 , is modified with respect to classification of the EZ Tree Bar in subheading 9817 .00.50 , HTSUS. The primary classification of the EZ Tree Bar in subheading 7326.90.85 , HTSUS, is
unchanged.
In accordance with 19 U.S.C. 1625 (c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division