CLA-2 CO:R:C:G 083975 AJS
Mr. Robert A. Calandra, Esq.
Freeman, Wasserman & Schneider
90 John Street
New York, New York 10038
RE: Greenhouse screen material
Dear Mr. Calandra:
Your letter of March 10, 1989, requesting a reconsideration
of New York ruling letter 832733 has been referred to this office
for reply.
FACTS:
The articles in question are different types of greenhouse
screen material. The screen material has a wide variety of uses
including ornamentation, shading, windbreaking, ventilation, soil
support, predator and evaporation control, and insulation. The
principle use in the United States of the screen material is for
greenhouse screens used with shading and heat retention systems.
The material is composed of polyester, polyethylene and aluminum
components. The articles are manufactured in five standard
widths and are to be imported in material roll lengths.
There are two particular types of screen material under
reconsideration. One type is comprised of polyester or
polyethylene strips 5 mm or less in width. The second type
additionally contains backed aluminum foil strips as a
component. Inasmuch as this is a request for reconsideration, we
will not consider the classification of any items which were not
part of New York ruling letter 832733 of November 21, 1988. In
the interest of sound administration, your request for a ruling
on screens comprised of polyester or polyethylene strips with a
width in excess of 5 mm should be made the subject of a separate
request.
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ISSUE:
Whether the greenhouse screen material in question is
classifiable within subheading 4601.99.00, HTSUSA, which
provides for plaits and similar products of plaiting material; or
within subheading 6002.43.00, HTSUSA, which provides for warp
knit fabrics of man-made fibers; or within subheading 7607.20.50,
HTSUSA, which provides for other articles of backed aluminum
foil.
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings of the tariff and any relative section or chapter
notes.
You claim that the articles in question are parts of shading
and heat retention systems and not material for making greenhouse
screens. You state that this conclusion is supported by the
analysis in Coraggio Design Inc. v. United States (Coraggio),
Slip Op. 88-22, February 19, 1988. You conclude that screen
material is not a material because it is advanced to a point
where no significant processing steps remain. However, this is
only one of the requirements which must be satisfied before an
article can be classified as more than material. Coraggio also
requires that the material be processed to the point where an
individual article is identifiable with certainty, and the
material must be cut to specific lengths or marked for cutting.
Id. at 14. The articles at issue do not satisfy the remaining
two prongs of the Coraggio test. Individual screens are not
identifiable with certainty in each roll. Each roll contains a
different number of screens depending on the size of the
greenhouse which will be covered. In addition, the screen
material is not cut to specific lengths or marked for cutting at
the time of importation. The fact that the material is cut in
standard widths does not by itself satisfy this requirement.
Therefore, the screen material in question is classifiable as a
material for making greenhouse screens and not as a part of a
shading and heat retention system.
The classification of greenhouse screen material as a
"material" is also supported by one of the cases cited in
Coraggio. In Harding Co. v. United States, 23 CCPA 250, T.D.
48109 (1936), the court held that material commercially suitable
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for use only for the manufacture of brake lining, imported in
rolls, not cut before importation, not marked for cutting, and
not dedicated to the making of any particular brake lining, was
"material" for the purpose of making automobile brake linings and
not finished or unfinished parts of automobiles. The greenhouse
screen material at issue satisfies all these factors listed in
Harding, and as such are classifiable in a similar manner as a
"material".
While these decisions are not binding on Customs, Congress
has appropriately indicated that earlier tariff rulings must not
be disregarded in applying the HTSUSA. The conference report to
the Omnibus Trade Bill, states that "on a case-by-case basis
prior decisions should be considered instructive in interpreting
the HTS[USA], particularly where the nomenclature previously
interpreted in those decisions remain unchanged and no dissimilar
interpretation is required by the text of the HTS[USA]." H. Rep.
No. 100-576, 100th Cong., 2D Sess. 548 (1988) at 550. In this
case, we find these two decisions to be most instructive in
determining the difference between a "material" and a "part".
The first type of screen material to be considered is
comprised of polyester or polyethylene strips 5 mm or less in
width. You claim that these screens are classifiable in
subheading 5911.90.00, HTSUSA, as textile articles for technical
use. In our opinion this argument is based on an incorrect
understanding of Chapter 59, Note 7(b). This note states that
textile articles of a kind used for technical purposes cover
articles such as textile fabrics and felts, endless or fitted
with linking devices, of a kind used in papermaking or similar
machines such as pulp or asbestos-cement machines, gaskets,
washers, polishing discs and other machinery parts. The articles
in question do not fall within the purview of this description.
Furthermore, the Explanatory Notes (EN) to 59.11 state in
part that all textile articles of a kind used for technical
purposes are classified in this heading and not elsewhere in
Section XI. EN 59.11(B). In other words, an item must be a
textile article and used for technical purposes. The EN list the
following as examples:
"(1) Any of the fabrics of (A) above which have been made up
(cut to shape, assembled by sewing, etc.), for example,
straining cloth for oil presses made by assembly of
several pieces of fabric; bolting cloth cut to shape
and trimmed with tapes or finished with metal eyelets
or cloth mounted on a frame for use in screen printing.
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(2) Textile fabrics and felts, endless or fitted with
linking devices, of a kind used in paper-making or
similar machines (for example, for pulp or asbestos-
cement) . . .
3) Articles formed of linked monofilament yarn spirals and
having similar uses to the textile fabrics and felts of
a kind used in paper-making or similar machines
referred to in (2) above.
(4) Gaskets and diaphragms for pumps, motors, etc., and
washers (excluding those of heading 84.84).
(5) Discs, sleeves and pads for polishing and other
machines.
(6) Textile bags for oil presses
(7) Cords cut to length, with knots, loops or metal or
glass eyelets, for use on jacquard or other looms.
(8) Loom pickers.
(9) Bags for vacuum cleaners, filter bags for air
filtration plant, oil filters for engines, etc."
The articles in question are a combination of plastic and textile
material used to make greenhouse screens. They are not used for
technical purposes and do not fit the description of any of the
articles in the Chapter note or the description of articles
listed in the Explanatory Notes to 59.11.
Heading 4601 provides for "[p]laits and similar products of
plaiting materials, . . . ; plaiting materials, plaits and
similar products of plaiting materials, bound together in
parallel strands or woven, in sheet form, . . . (for example,
mats, matting, screens)." Chapter 46, Note 1, states "[p]laiting
materials means materials in a state or form suitable for
plaiting, interlacing or similar processes; it includes . . .
monofilament and strip and the like of plastics." Note 3 states
"[t]he expression plaiting materials, plaits and similar products
of plaiting materials, bound together in parallel strands means
plaiting materials . . . placed side by side and bound together,
in the form of sheets, whether or not the binding materials are
of spun textile materials." This description is an eo nomine
designation of the screens at issue which are made of plaiting
material (plastic strips) bound together in parallel strands
using a monofilament.
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The EN to Chapter 46 state that goods made by binding
parallel strands of plaiting materials may be bound by a plaiting
material, textile yarn or some other material. EN 46.01(B).
Therefore, the use of a knit monofilament such as in this case is
also specifically covered by the ENs as well as Chapter Note 3.
However, the ENs also state that the sole function of the
textile yarn must be to bind the plaiting substance together. EN
46.01(B). This is not the sole function of the textile fabric in
this case. In addition, the fabric allows for moisture and air
to enter and exit the greenhouse. This process serves to
regulate humidity as well as prevent water from forming puddles
on the roof of the greenhouse. It has been admitted by the
manufacturers that the plastic sheeting itself does not function
in this manner. This conclusion regarding the function of the
textile fabric is also supported by the fact that other
manufactures of agricultural shadecloth use only knit fabric to
produce insulation, shading and evaporation control.
Since the textile fabric in question performs a function
other than that of binding the plaiting substance together, it
goes beyond the description of allowable material in heading
46.01. The screens are goods consisting of more than one
material and, therefore, are classifiable according to the
principles of GRI 3. Based on this fact, the textile portion of
the screen, as well as the plaiting material, must be taken into
account for classification purposes.
The fabric in question is a warp knit fabric made of 100
percent man-made fibers. Heading 6002 provides for knitted
fabrics and subheading 6002.43.00 provides for warp knit fabrics
of man-made fibers. General Explanatory Note (A)(II) to Chapter
60 state that "[w]arp knits consist of a number of threads
running in the direction of the warp (i.e., along the length of
the fabric) each thread forming loops interlocking alternatively
with loops in rows to the left and right." The fabric used in
the screens meets this description of warp knit fiber and also is
made of man-made fibers. Therefore, this fabric is specifically
provided for in subheading 6002.43.00, HTSUSA.
The screen material in question is a good consisting partly
of plastic strips and fabric. GRI 2(b) states any reference to
goods of a given material or substance shall be taken to include
a reference to goods consisting wholly or partly of such material
or substance. The effect of this rule is to extend any heading
referring to goods of a given material or substance to include
goods consisting partly of that material or substance. EN
2(b)(XI). Thus, a heading covering plaits and plaiting material
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(i.e. 4601) can include articles consisting partly of plaits and
warp knit fabric, and a heading covering warp knit fabric (i.e.
6002) likewise can include articles consisting partly of knit
fabric and plaits. GRI 2(b) requires the classification of
goods like the screen material at issue (i.e. ones consisting of
more than one material) to be governed by GRI 3.
GRI 3 provides for classification when goods are prima facie
classifiable under two headings by the application of GRI 2(b).
The screen material consists of more than one component material
and are prima facie classifiable within heading 4601 based on the
fact that they contain plaiting material. In addition, the
screens are prima facie classifiable within heading 6002 based on
the fact that they contain warp knit fabric which is used for
more than binding purposes.
GRI 3(a) states that "[t]he heading which provides the most
specific description shall be preferred to headings providing a
more general description. However, when two or more headings
each refer to part only of the materials or substances contained
in mixed or composite goods . . . , those headings are to be
regarded as equally specific in relation to the goods . . ."
This is the situation in the present case, therefore, neither
one of the proposed headings can be considered more specific than
the other.
GRI 3(b) requires that composite goods consisting of
different materials, which cannot be classified by reference to
3(a), shall be classified as if they consisted of the material
which gives them their essential character. Neither the plaiting
material or the warp knit fabric imparts the essential character
to the screen material. They both perform an essential and
unique function. Thus, the article in question cannot be
classified by the terms of GRI 3(b).
GRI 3(c) states that when goods cannot be classified by
reference to 3(a) or 3(b), they shall be classified under the
heading which occurs last in numerical order. Accordingly, this
rule requires the greenhouse screens of plaiting material (i.e.,
heading 6002) and warp knit fabric (i.e., heading 4601) to be
classified within heading 6002.
Heading 7607, HTSUSA, provides for articles of backed
aluminum foil. The screen material which contains components of
backed aluminum foil, as well as plaiting material and warp knit
fabric, would also be subject to a GRI 2(b) analysis. The
material is a composite good consisting of component materials of
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backed aluminum foil, plaiting material and warp knit fabric.
Classification of this type of article falls within GRI 3.
Neither GRI 3(a) or 3(b) would apply because the headings at
issue are equally specific and none of the components provide the
essential character for the screen material. Accordingly, GRI
3(c) would apply which requires a comparison to be made between
subheadings 4601 (i.e., plaiting material), 6002 (i.e., warp knit
fabric) and 7607 (i.e., articles of backed aluminum foil).
Heading 7607 would govern classification because it occurs last
in numerical order. More specifically, the screen material would
be classifiable within subheading 7607.20.5000 as articles of
backed aluminum foil.
HOLDING:
The greenhouse screens comprised of polyester or
polyethylene strips 5 mm or less in width are classifiable within
subheading 6002.43.0080, HTSUSA, which provides for warp knit
fabric of man-made fiber.
The greenhouse screens which include components of aluminum
are classifiable within subheading 7607.20.5000, HTSUSA, which
provides for other articles of backed aluminum foil.
Sincerely,
Jerry Laderberg
Acting Director
Commercial Rulings Division