CLA-2 OT:RR:CTF:EMAIN HQ H301361 TPB
Jena L. Cauley, Esq.
First Coast Legal Group, LLC
554 Lomax Street
Jacksonville, Florida 32204
Re: Reconsideration of NYRL N300408; affirmed; Classification of anti-insect insulating greenhouse nets
Dear Ms. Cauley:
The following is our decision regarding your request for reconsideration of New York Ruling Letter (NYRL) N300408, dated October 2, 2018, on behalf of your client, Tree Defender LLC (Tree Defender; Importer) regarding the tariff classification of anti-insect insulating greenhouse nets under the Harmonized Tariff Schedule of the United States (HTSUS). In that ruling letter, the products at issue, “Tree Defenders,” are described as polyethylene fabric sewn in a tapered polygonal shape with hook and loop fasteners sewn near the bottom to allow farmers to open them for tree maintenance. They are designed to fit over young citrus trees to protect them from pests and harsh weather conditions, and to also provide UV protection. They were classified under subheading 6307.90.9889, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for other made up textile articles, including dress patterns: Other: Other” Other. In your request for reconsideration, you argue that the proper classification of the Tree Defenders is heading 84.36, subheading 8436.99.0090, HTSUSA, which provides for 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: Parts: Other: Other: Other.
Upon review of NYRL N300408, we have determined that it is correct. This ruling affirms NYRL N300408 for the reasons set forth below.
FACTS:
The articles at issue in NYRP N300408 are anti-insect insulating greenhouse nets, referred to as “Tree Defenders”. These nets are comprised of a warp-knitted high-density polyethylene material covered with UV stabilizers and manufactured to have .26mm x .83mm mesh holes. This mesh hole size was selected specifically to prevent psyllids (insects which causes a greening disease named Huanglongbing (HLB)) from reaching citrus trees and other agricultural plants. These nets are designed to fit over young citrus trees to protect them from pests and harsh weather conditions, and to also provide UV protection. They will be imported in sizes from 4 to 12 feet, are intended for multiple use, and have the capability to last for approximately nine years.
ISSUE:
Are the anti-insect insulating greenhouse nets under consideration properly classified under subheading 6307.90.9889, HTSUS, as other made up textile articles, other; or subheading 8436.99.0090, as 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: parts: other?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
6307 Other made up articles, including dress patterns:
6307.90 Other:
6307.90.98 Other
6307.90.9889 Other.
* * *
8436 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:
Parts:
8436.99.00 Other
8436.99.0090 Other.
* * *
Additional U.S. rule of interpretation 1(c) provides that “[i]n the absence of special language or context which otherwise requires, a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for ‘parts’ or ‘parts and accessories’ shall not prevail over a specific provision for such part or accessory.” Therefore, in accordance with the additional U.S. rule of interpretation 1(c), if the subject merchandise is prima facie classifiable in heading 6307, HTSUS, as entered, then it should be classified in that heading.
Being composed of a warp-knitted high-density polyethylene material, the products at issue are not excluded from classification of Section XI, which provides for textiles and textile articles. Further, the Tree Defenders are “made-up” articles, as they are “sewn together [into a] polygonal shape,” thus satisfying Note 7 (a) and (e) to Section XI, which states:
For the purposes of this section, the expression “made up” means:
Cut otherwise than into squares or rectangles;
…
(e) Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded);
….
As such, per Additional U.S. rule of interpretation 1(c), the subject goods would be classified under heading 63.07, HTSUS, as opposed to a “parts” provisions. Even if, arguendo, the goods were classifiable under two or more headings, they would not be considered “parts” of the machines of Chapter 84 for the reasons set forth below.
You argue that the Tree Defenders at issue are substantially similar to the UV-coated anti-insect polyethylene material described within Customs Headquarters Ruling (HQRL) H219598, dated January 5, 2016. In H219598, Customs classified certain anti-insect insulating greenhouse nets in subheading 8436.99.00, which provides for “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: Parts: Other.”
The products that are the subject of the ruling you cited are described as nets comprised of polyethylene woven fabric of synthetic monofilament yarns with cross-sectional threads not exceeding 1 mm, not bleached or dyed, or glued or thermal bonded at the threaded intersections. The subject nets are imported in rolls between 3m x 500m and 5m x 500m and cut to length before they are sold to customers. The nets are used either for incorporation into agriculture structures or for making those structures (i.e., shade houses, greenhouses, etc.) themselves. The nets also contain ultra-violet light stabilizers that provide five-year resistance against sunlight, and other additives, such as calcium carbonate and titanium dioxide, that contribute to specific transparency and light diffusion characteristics critical to the agricultural uses to which they are put. The subject nets prevent insects, such as white flies and thripes, from entering greenhouses and similar man – made growing environments, therefore enabling enhanced production of flower and food crops.
As noted in the description of the products of HQRL 219598, those goods were used for incorporation into agriculture structures (i.e., shade houses, greenhouses, etc.), or for making those structures themselves. As such, they were classified as “parts” of those structures.
The courts have considered the nature of “parts” under the HTSUS and two distinct though not inconsistent tests have resulted. See Bauerhin Techs. Ltd. P’ship. v. United States (“Bauerhin”), 110 F. 3d 774 (Fed. Cir. 1997). The first, articulated in United States v. Willoughby Camera Stores, Inc. (“Willoughby”), 21 C.C.P.A. 322, 324 (1933), requires a determination of whether the imported item is an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 778 (quoting Willoughby, 21 C.C.P.A. 322 at 324). The second, set forth in United States v. Pompeo (“Pompeo”), 43 C.C.P.A. 9, 14 (1955), states that an “imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.” Id. at 779 (citing Pompeo, 43 C.C.P.A. 9 at 13). Under either line cases, an imported item is not a part if it is “a separate and distinct commercial entity.” Bauherin, 110 F. 3d at 779.
More recently, the Court of International Trade applied the Willoughby and Pompeo tests when it addressed the issue of whether two vase-shaped glass structures were classifiable as glassware in heading 7013, HTSUS, or as parts of lamps in heading 9405, HTSUS. Pomeroy Collection, Ltd., v. United States, 783 F. Supp. 2d 1257, No. 11-78 (Ct. Int’l Trade 2011). In applying Willoughby to the first article, the court ruled that “[w]hen imported, the claimed article is dedicated solely for use in such article, and, when applied to that use, the claimed part meets the Willoughby test.” Ibid, at 1261-1262. In Pomeroy, the court found that first article satisfied the Willoughby test because the hurricane lamp “clearly could not function without the first article in question” since the lamp relied upon the glass structure to hang upon. Id. at 1262. The court found that the second glass structure satisfied Pompeo because the evidence showed that the glass structure contained the flame and enabled the candles to remain lit and to prevent open flames. Thus, the court also found that the second article at issue also satisfied the Willoughby precedent because “when applied to that use” the lamp could not function without the glass structures. Id. In other words, to satisfy the Pompeo test, two prongs must be satisfied: (1) the article must be solely dedicated for use with the product it claimed to be a part of and, (2) when applied to that use, the article cannot function without the article at issue.
Based on the preceding, the instant Tree Defenders would not be considered “parts.” They are not incorporated into, or used to make, agriculture structures. They are fitted over a tree and secured with a hook and loop fastener fixed at the bottom of the material, thus constituting the final “structure” itself, not a “part” of it. As such, they are not “parts” of machinery classified in Chapter 84, as specified in Note 2 to Section XVI.
The subject Tree Defenders are also similar to products previously classified by CBP. In HQRL HQ 950720, dated February 20, 1992, CBP classified 100 % non-woven plant sleeves under subheading 6307.90. The tree sleeves were cut and sewn in a cone shaped, opened at both ends. The product is used by growers to place over young plants to protect them.
You also state that the fabric the Tree Defenders are made from is treated with a specialized UV protection, KAFRIT 6920, and this UV protection is used industry-wide in greenhouse films. You reference HQRL H219598, dated January 5, 2016, to support your claim that the Tee Defenders should be classified under heading 84.36 because of the UV protection feature. In that ruling, it was determined that the fabric featured a specialized UV protection and the fabric was dedicated solely for use with greenhouses or shade houses and will be incorporated directly into the greenhouse/shade house walls. The ruling also states, that the UV protected fabric “is an integral component without which greenhouses or shade houses could not function. A greenhouse/shade house cannot function without walls. The subject fabric is specifically designed to fit into the wall of a structure and therefore more than a textile fabric” and thus classification was under heading 8436. As noted above, the goods that were the subject of H219598 are distinguishable from those presently before us. In our view, the presence of the UV protection on the material on the Tree Defenders does not elevate the classification of these products to another more specific heading.
HOLDING:
By application of GRIs 1 and 6 the subject anti-insect insulating greenhouse nets are classified in subheading 6307.90.9889, HTSUSA, which provides for other made up textile articles, other. The rate of duty will be 7-percent ad valorem.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 6307.90.9889, HTSUS, unless specifically excluded, are subject to an additional 15-percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.15, in addition to subheading 6307.90.9889, HTSUS, listed above.
The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at https://hts.usitc.gov/current.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division