HQ 0083975 - Greenhouse screen material - United States International Trade Commision Rulings

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HQ 083975

April 11, 1990

CLA-2 CO:R:C:G 083975 AJS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4601.99.0000, 6002.43.0000, 7607.20.5000

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.

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
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.

(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.

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

(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
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

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