CLA-2 CO:R:C:M 955432 KCC
District Director
U.S. Customs Service
477 Michigan Avenue
Detroit, Michigan 48226
RE: Protest 3801-93-103448; shade and heat retention systems;
steel supports, electric motors, steel tubing, brackets,
pulleys, steel pipes and cables, fasteners, miscellaneous
components and screens; 8436.80.00; other agricultural and
horticultural machinery; EN 84.36; GRI 3(b); composite good;
essential character; EN Rule 3(b); screening material; HRL
954785; HRL 955113; HRL 952072; HRL 083975; HRL 088546
Dear District Director:
This pertains to Protest 3801-93-103448, concerning the
tariff classification of shade and heat retention systems under
the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise at issue is Carvo Equipment Ltd. shade and
heat retention systems (shade and heat retention systems). The
protestant describes the shade and heat retention systems as
essentially complete systems comprised of steel supports,
electric motors, steel tubing, brackets, pulleys, steel pipes and
cables, fasteners, miscellaneous components and screens. Each
shade and heat retention system is made to the customer's
specifications. Therefore, screening materials for each system
are different, but may include textile material, textile material
blend incorporating backed aluminum foil, Alupor which is 50%
aluminum, 40% polypropylene, and 10% rayon, and other variations.
The shade and heat retention systems are designed for frost
control, shading, cooling, photo period control and other
considerations affecting the greenhouse, market gardens or
similar structures. Additionally, the protestant's submitted
product information indicates that the shade and heat retention
systems can be "[c]ustom designed curtain systems for
institutional and architectural applications."
Upon importation, the entries of the shade and heat
retention systems with textile screening material not containing
aluminum foil strips were liquidated starting on July 9, 1993,
under subheading 6307.90.99, HTSUS, as other made up articles.
In a protest timely filed on September 20, 1993, the protestant
contends that the shade and heat retention systems are properly
classified under subheading 8436.80.00, HTSUS, as other
agricultural and horticultural machinery. The competing
subheadings are as follows:
6307.90.99 Other made up articles, including dress
patterns...Other...Other...Other....
8436.80.00 Other agricultural, horticultural, forestry,
poultry-keeping or bee-keeping machinery,
including germination plant fitted with mechanical
or thermal equipment; poultry incubators and
brooders; parts thereof...Other machinery....
ISSUE:
Are the shade and heat retention systems classified as other
made up articles under subheading 6307.90.99, HTSUS, or as other
agricultural and horticultural machinery under subheading
8436.80.00, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, states, in part, that "for legal purposes, classification
shall be determined according to terms of the headings and any
relative section or chapter notes...."
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System (HCDCS) Explanatory Notes
(ENs) may be consulted. The ENs, although not dispositive,
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. 89-90, 54 Fed. Reg. 35127, 35128
(August 23, 1989). EN 84.36 (pgs. 1216-1219) states that heading
8436, HTSUS, covers:
...machinery, not falling in headings 84.32 to 84.35, which
is of the type used on farms (including agricultural
schools, co-operatives or testing stations), in forestry,
market gardens, or poultry-keeping farms or the like.
However, it excludes machines clearly of a kind designed for
industrial use (emphasis in original).
EN 84.36 lists exemplars of the class or kind of articles
classifiable under heading 8436, HTSUS, as other agricultural and
forestry machinery. The exemplars included seed dusting
machines, fertilizer crushing or mixing mills, machines for
cutting slips, hedge cutting machines, machines and appliances
for preparing fodder, automatic watering troughs, mechanical
clippers, tree uprooters, tree-felling machines, tree
transplanters, stump removers, and machines for chipping
branches, twigs, etc.
We are of the opinion that the shade and heat retention
systems under consideration are not of the same class or kind of
agricultural or horticultural machines listed in the EN exemplars
to heading 8436, HTSUS. The shade and heat retention systems do
not cut, crush, water, clip, grip, fell, remove, chip, etc. The
shade and heat retention systems are not in the nature of a tool
used in the place of a hand tool engaged in agricultural or
horticultural work, as the overwhelming majority of machines are
in EN 84.36. Instead, the shade and heat retention systems are
merely mechanized shade and heat retention systems used to
control the environment of a structure, in this case the
structure of a greenhouse, market garden or similar structure.
Moreover, the protestant's submitted product information
indicates that the shade and heat retention systems can be
"[c]ustom designed curtain systems for institutional and
architectural applications." The institutional and architectural
applications indicate that the shade and heat retention systems
are not limited to agricultural or horticultural applications,
but can be custom designed to fit any customer's needs.
Therefore, the shade and heat retention systems are not
classified as other agricultural or horticultural machinery under
subheading 8436.80.00, HTSUS, pursuant to GRI 1, HTSUS.
The shade and heat retention systems consists of different
components, i.e., electric motor, screening materials, structural
elements, which are classified in various headings of the HTSUS.
When by application of GRI 2, HTSUS, goods are prima facie
classifiable under two or more headings, GRI 3, HTSUS, is
applicable. In this case, classification is determined by
application of GRI 3(b), HTSUS, which provides:
Mixtures, composite goods consisting of different materials
or made up of different components, and goods put up in sets
for retail sale, which cannot be classified by reference to
3(a), shall be classified as if they consisted of the
material or component which gives them their essential
character, insofar as this criterion is applicable.
EN Rule 3(b)(IX)(pg. 4) states that:
For the purposes of this Rule, composite goods made up of
different components shall be taken to mean not only those
in which the components are attached to each other to form a
practically inseparable whole but also those with separable
components, provided these components are adapted one to the
other and are mutually complementary and that together they
form a whole which would not normally be offered for sale in
separate parts (emphasis in original).
We are of the opinion that the shade and heat retention
systems are composite goods because the components are adapted
one to the other, mutually complementary, and together form a
whole which would not normally be offered for sale in separate
parts to control the environment of a greenhouse or similar
structure. Therefore, we need to determine which component
imparts the essential character.
In general, essential character has been construed to mean
the attribute which strongly marks or serves to distinguish what
an article is; that which is indispensable to the structure, core
or condition of the article. In addition, EN Rule 3(b) (pg. 4),
provides further factors which help determine the essential
character of goods. Factors such as bulk, quantity, weight or
value, or the role of a constituent material in relation to the
use of the goods are to be utilized, though the importance of
certain factors will vary between different kinds of goods.
A similar issue was discussed in Headquarters Ruling Letter
(HRL) 954785 dated September 22, 1993, which classified a steel
structure for a non-motorized shade house system. The complete
shade house consisted of a steel structure covered by a shade
cloth and was used to protect sun-sensitive plants from direct
sunlight. In HRL 954785 we held that the steel structure without
shade cloth could not be classified as a complete shade house
system pursuant to GRI 2(a), HTSUS, because it did not have the
essential character of a complete shade house system. The
essential character of the complete shade house system was the
shade cloth because the shade cloth is the component which
protects the plants from the sunlight. See also, HRL 955113
dated November 16, 1993, in which we held that an unassembled
greenhouse without glass panes did not have the essential
character of a completed greenhouse since the glass panes, which
create the controlled environment, were not present, and HRL
952072 dated September 16, 1992, in which a windscreen and steel
tubing were classified under subheading 6307.90.99, HTSUS,
pursuant to GRI 3(b), HTSUS, because the essential character of
the composite good was determined to be the windscreen.
The shade and heat retention systems under consideration and
the shade house systems in HRL 954785 are similar in that they
both provide a stable environment in which to grow plants,
flowers and the like. The difference is that the shade and heat
retention systems at issue are motorized and designed for more
sophisticated applications. Based on the HRLs and information
provided, we are of the opinion that the essential character of
the shade and heat retention systems at issue is the screening
material. It is the screening material which controls the
environment of the structures in which the shade and heat
retention systems at issue operate. Therefore, the screening
material imparts the essential character to the shade and heat
retention systems and the entire shade and heat retention systems
are classified under the tariff provision for the screening
material in each system.
Various screening materials of this type were classified in
HRL 083975 dated April 11, 1990, which is presently being
reconsidered in HRL 088546. Based on the analysis of the
screening materials in HRL 083975 and the fact that the screening
material at issue is composed of textile material not containing
aluminum foil strips, we are of the opinion that the screening
material, and therefore, the entire shade and heat retention
systems at issue, are classified under subheading 6307.90.99,
HTSUS, as other made up articles. We note that other shade and
heat retention systems may be composed of different screening
material and, therefore, will be classified under other tariff
provisions based on the classification of the screening material
at issue in those shade and heat retention systems.
HOLDING:
The subject shade and heat retention systems are composite
goods classified pursuant to GRI 3(b), HTSUS, with the essential
character imparted by the screening material. Therefore, as the
screening material at issue is composed of textile material not
containing aluminum foil strips, the entire shade and heat
retention systems at issue are classified under subheading
6307.90.99, HTSUS, as other made up articles.
The protest is DENIED. In accordance with Section 3A(11)(b)
of Customs Directive 099 3550-065, dated August 4, 1993, Subject:
Revised Protest Directive, this decision should be mailed, with
the Customs Form 19, by your office to the protestant no later
than 60 days from the date of this letter. Any reliquidation of
the entry in accordance with the decision must be accomplished
prior to mailing of the decision. Sixty days from the date of
the decision the Office of Regulations and Rulings will take
steps to make the decision available to Customs personnel via the
Customs Rulings Module in ACS and the public via the Diskette
Subscription Service, Lexis, Freedom of Information Act, and
other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division