# HQ 965519

July 3, 2002

> CLA‑2 RR:CR:GC 965519 RFA
>
> CATEGORY: Classification
>
> TARIFF NO.: 3923.90.00
>
> Port Director of Customs
>
> 4735 Oakland St.
>
> Denver, CO 80239
>
> RE: Protest 3307‑02‑100006; Plastic Insert Trays; Agricultural or
> Horticultural Purposes
>
> Dear Port Director:
>
> The following is our decision regarding Protest 3307‑02‑100006, which
> concerns the classification of plastic insert trays under the
> Harmonized Tariff Schedule of the United States (HTSUS).
>
> FACTS:
>
> The merchandise consists of certain plastic insert trays, which are
> placed inside boxes to hold and protect produce as it is transported
> to market. The protestant maintains that these trays are implements to
> be used for agricultural purposes because the trays are used by
> growers to protect the tomatoes in the packaging of the tomatoes from
> the field. The protestant asserts that the trays are made expressly
> for use as agricultural protective packaging. It is further stated
> that the State of Colorado recognizes that these trays are containers
> used by agricultural producers to deliver products to customers and
> are therefore not subject to state tax.

The merchandise was entered on April 4 and July 2, 2001, under heading

9817.00.50, HTSUS, as equipment and implements used for agricultural or

horticultural purposes. The entries were liquidated on February 1 and
January

25, 2002, under subheading 3923.90.00, HTSUS, as other plastic articles
for the

conveyance or packing of goods. The protest was timely filed on February
21, 2002.

> The HTSUS provisions under consideration are as follows:

3923.90.00: Articles for the conveyance or packing of goods, of
plastics;

> . . .: \[o\]ther\....
>
> Goods classifiable under this provision have a column one, general
> rate of duty of 3.0 percent ad valorem.

50. Machinery, equipment and implements to be used for agricultural or
    horticultural purposes\....

Goods classifiable under this provision have a column one, general rate
of duty of free.

ISSUE:

Does the plastic insert trays qualify for duty‑free entry as
agricultural or horticultural implements, in Chapter 98, under the
HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the
General Rules of Interpretation (GRl\'s), taken in order. GRI 1 provides
that classification shall be determined according to the terms of the
headings and any relative section or chapter notes.

Heading 9817.00.50, HTSUS, grants duty free treatment for
\"\[m\]achinery, equipment and implements to be used for agricultural or
horticultural purposes\....\" This is an actual use provision.
[See]{.underline} HQ 083930 (May 19, 1989). To fall within this special
classification, a three‑part test must be met. First, the subject
merchandise must not be excluded from the heading under Section XXII,
Chapter 98, Subchapter XVII, U.S. Note 2, HTSUS. Secondly, the terms of
the headings must be met in accordance with GRI 1, which provides that
classification is determined according to the terms of the headings and
any relative section or chapter notes. Thirdly, the article must comply
with the actual use provision required under section 10.131 through
10.139, Customs Regulations (19 CFR 10.131 through 10.139).
[See]{.underline} HQ 086883 (May 1, 1990); HQ 087076 (June 14, 1990); HQ
089936 (November 15, 1991).

The first part of the test is to determine whether the plastic trays are
excluded from heading 9817.00.50, HTSUS. To do this we must first
determine under which subheading the trays are classified. The trays are
made of plastic and are designed so that they can be inserted inside
boxes to hold and protect produce as it is transported to market. By
application of GRI 1, the subject merchandise meets the terms of heading
3923, as plastic articles for the conveyance or packing of goods. It is
specifically

provided for in subheading 3923.90.00. This subheading is not excluded
from classification in heading 9817.00.50, HTSUS, by operation of
Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2.

The second part of the test calls for the plastic insert trays to be
included within the terms of heading 9r817.00.50, HTSUS, as required by
GRI 1. The plastic insert trays must be \"machinery\", \"equipment\" or
\"implements\" used for "agricultural or horticultural purposes". In‑HQ
955597, dated May 31, 1994, Customs cited the Webster\'s II New
Riverside University Dictionary (1988), for definitions of the terms
machinery, equipment, implement, agriculture and horticulture as
follows:

> Machinery: 1. Machines or machine parts in general. 2. The working
> parts of a machine. 3. A system of related elements that operates in a
> definable way.
>
> Equipment: 1. The act of equipping or state of being equipped. 2.
> Something with which one is equipped.1
>
> Implement: 1. A tool, utensil, or instrument for doing a task. 2. An
> article used to outfit or equip.
>
> Agriculture: The science, art, and business of cultivating the soil,
> producing crops, and raising livestock.
>
> Horticulture: The science, art, and business of cultivating fruits,
> vegetables, flowers, and plants.

For this part of the test, the initial determination to be made is what
agricultural or horticultural pursuit is in question. It is the
importer\'s position that the plastic insert trays which protects
produce while in transit meets the criteria for being an agricultural
purpose. To support its position, the importer cites to NY 806110, dated
February 16, 1995, in which Customs held that a ethylene vinyl acetate
cow mat used as a cushion in the cow stall met the criteria for
classification under heading 9817.00.50, HTSUS, because the maintenance
of livestock is, per se, agricultural for tariff purposes. However, the
plastic insert trays do not assist in the cultivating, producing or
harvesting of crops. Instead, the plastic trays are used to facilitate
the shipment of the produce from the fields to the market. Consequently,
the plastic tray does not meet the second part of the test for
classifying an item in heading 9817.00.50, HTSUS. We find that the
plastic insert trays do not qualify for duty‑free entry as agricultural
or horticultural implements in Chapter 98, under the HTSUS.

The importer also claims that the State of Colorado recognizes the use
of the plastic insert trays in an agricultural pursuit by exempting it
from the state sales tax and that should be sufficient for Customs
purposes. However, as stated in HQ 952995,

dated March 10, 1993, \"it is well established that statutes,
regulations and administrative interpretations \[by other government
agencies\] relating to \'other than tariff purposes\' are not
determinative of customs classification disputes.\" [Amersham Corp. v.
United States]{.underline}, 5 CIT 49, 56, 564 F.Supp. 813 (1983). [See
also United States v. Mercantil Distribuidora. S.A.]{.underline}, 43
CCPA 111, C.A.D. 617 (1956); [Swift & Co. v. United States]{.underline},
27 CCPA 181, C.A.D. 83 (1939). We believe that the proper issue here is
whether the packing of produce for transport goes beyond the pursuit of
agriculture. As discussed above, we find that the plastic insert trays
used for packaging of produce for transport and sale to the markets does
not assist in the agricultural pursuit. It is therefore ineligible for
duty‑free entry.

HOLDING:

The subject merchandise is classifiable under subheading 3923.90.00,
which provides for: \"\[a\]rticles for the conveyance or packing of
goods, of plastics; . . .: \[o\]ther

. . . ." Goods classifiable under this provision have a column one,
general rate of duty of 3.0 percent ad valorem.

The protest should be DENIED. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550‑065, dated August 4, 1993, Subject: Revised
Protest Directive, you are to mail this decision, together with the
Customs Form 19, to the protestant no later than 60 days from the date
of this letter. Any reliquidation of the entry or entries in accordance
with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, 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,

> Myles B. Harmon, Acting Director
>
> Commercial Rulings Division