CLA-2 RR:CR:GC 964657 JAS
Port Director of Customs
4635 Oakland St.
Denver, CO 80239
RE: Protest 3307-00-100060; Greenhouse Parts and Components
Dear Port Director:
This is our decision on Protest 3307-00-100060, filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of components for use in assembling a greenhouse. The entry under protest was liquidated on July 28, 2000, and this protest timely filed on September 21, 2000.
FACTS:
The merchandise at issue is various parts and components for assembly into a large greenhouse for the commercial production of tomatoes. Among the parts and components are steel building supports, glass panes and aluminum framework, all ready-to assemble without cutting or significant adjustment. Included are a screening and shading system, including plastic and base metal structural components, gearboxes and transmission units, all of which are used to protect the plants from excessive sunlight. Also imported are fans, heating apparatus, and a complete irrigation system. Because, when completed, the greenhouse covers 12 acres, these articles were imported in numerous shipments over at least two years. The entry under protest constitutes one such importation and includes combinations of the described articles.
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The Customs Form 7501 indicates that the components were entered under individual headings that describe them, i.e., heading 3917, HTSUS, tubes, pipes and hoses, of plastics, heading 7610, HTSUS, aluminum structures and parts of structures, etc. At liquidation, your office classified the merchandise as entered. Certain components, not specifically identified on the Customs Form 6445, were classified at liquidation free of duty as parts of agricultural or horticultural machinery. This classification is not being contested.
On protest, a claim is made under subheading 9817.00.50, HTSUS, as machinery, equipment and implements to be used for agricultural or horticultural purposes. This is a claim based on actual use and is supported by NY 818125, dated February 2, 1996, in which all the components needed to assemble a complete greenhouse, including but not limited to the articles subject to this protest, were found to be classifiable in subheading 9406.00.80, HTSUS, as other prefabricated buildings. The components in that ruling, all imported in the same shipment, were also found to be eligible under subheading 9817.00.50, HTSUS, upon compliance with the actual use requirements of sections 10.131 through and including 10.139, Customs Regulations.
The HTSUS provisions under consideration are as follows:
3917 Tubes, pipes and hoses and fittings therefor…, of plastics
7304 Tubes, pipes and hollow profiles, seamless, of iron or steel
Aluminum structures…and parts of structures; aluminum
plates, rods, profiles, tubes and the like, prepared for use in
structures
8436 Other agricultural, horticultural…machinery…; parts thereof
Machinery, equipment and implements to be used for
Agricultural or horticultural purposes
ISSUE:
Whether the merchandise at issue is eligible for treatment under subheading 9817.00.50.
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LAW AND ANALYSIS:
Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
It is noteworthy that the merchandise in NY 818125 constituted a complete greenhouse, the components of which were imported in the same shipment. A letter from the importer in this case, dated May 12, 2000, confirms the greenhouse at issue here was assembled from parts and components imported in multiple shipments. The articles in this protest comprise one such shipment. Therefore, NY 818125 is not authority for classifying this merchandise.
As to the claim under subheading 9817.00.50, HTSUS, goods of heading 7304 are not eligible for treatment under this provision, pursuant to Chapter 98, Subchapter XVII, U.S. Note 2(ij), HTSUS. Eligibility under this subheading is predicated on compliance with the actual use provisions of section 10.131 through and including 10.139, Customs Regulations. Aside from whether the remaining articles constitute machinery, equipment and implements under the claimed provision, section 10.133 of the Customs Regulations sets forth conditions for eligibility under a tariff classification controlled by an article’s actual use. One such condition is that the use be intended at the time of importation. Section 10.134 of the Customs Regulations requires that a showing of such intent by the importer shall be made either by filing with the entry a declaration of the intended use of the merchandise, or by entering the proper subheading of an actual use provision of the HTSUS on the entry form. Neither was done in this case. Making a claim under subheading 9817.00.50, HTSUS, on protest is not sufficient compliance with section 10.112 of the Customs Regulations, which sets forth the conditions for the filing of free entry documents after entry. See HQ 961431, dated December 1, 1998. The claim under subheading 9817.00.50, HTSUS, is denied.
HOLDING:
Under the authority of GRI 1, the parts and components in this protest are provided for, respectively, in the HTSUS headings listed on the Customs Form 6445. They are classifiable as liquidated.
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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.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division