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HQ 088546

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June 5, 1995

CLA-2 R:C:T 088546 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 7616.90.5080

Louis Schneider
Freeman, Wasserman & Schneider
90 John Street
New York, New York 10038

RE: Modification of Headquarters Ruling Letter (HRL) 083975; greenhouse screening; article of aluminum

Dear Mr. Schneider:

Customs has reviewed HRL 083975 of April 11, 1990, and we believe it is necessary to modify part of our decision in that ruling. Customs issued HRL 083975 to your firm in response to your request on behalf of AB Ludvig Svensson, for reconsideration of New York Ruling Letter (NYRL) 832733 of November 21, 1988. Arguments raised in your submission of April 1, 1993, April 18, 1994 and May 25, 1995, have been considered in making this decision.

The merchandise at issue was referred to in NYRL 832733 and HRL 083975 as greenhouse screen material. It is more properly identified as screening in its condition as imported.

Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993) (hereinafter section 625), notice of the proposed modification of HRL 083975 was published April 26, 1995, in the Customs Bulletin, Volume 29, Number 17.

FACTS:

NYRL 832733 classified certain greenhouse screening as other articles of aluminum in subheading 7616.90.0080, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), for those items containing aluminum foil in its material; or, as warp knit fabrics in subheading 6002.43.0090, HTSUSA, for those items that did not contain aluminum foil.

HRL 083975 reconsidered the classification of two types of screening classified in NYRL 832733. The screening is constructed of 100 percent man-made fiber warp knit fabric with strips inserted into the fabric. One type, comprised of polyester or polyethylene strips 5 mm or less in width, was classified in subheading 6002.43.0080, HTSUSA, which provides for warp knit fabric of man-made fiber. That part of HRL 083975 remains valid and unchanged. The screening we are concerned with here is the second type consisting of polyester or polyethylene strips 5 mm or less in width and backed aluminum foil strips 5 mm or less in width. This screening was classified in subheading 7607.20.5000, HTSUSA, as articles of backed aluminum foil. It is this classification which Customs believes to be in error.

That portion of HRL 083975 regarding the classification of the screening as a "material" and not a "part", thus eliminating consideration of classification in heading 8436, which provides for, among other things, other agricultural, horticultural machinery and parts thereof, remains valid and unchanged. However, Customs will address your additional arguments on this point.

ISSUE:

Is the greenhouse screening consisting of polyester or polyethylene strips 5 mm or less in width and backed aluminum foil strips 5 mm or less in width properly classified as knit fabric in heading 6002, HTSUSA, as other articles of aluminum in heading 7616, HTSUSA, or as aluminum foil in heading 7607, HTSUSA?

Are the aluminum foil strips in the greenhouse screening backed aluminum strips or metalized textile strips?

Did Customs err in rejecting classification of the subject greenhouse screening in heading 8436, HTSUSA, as parts of agricultural equipment?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

In HRL 083975, Customs acknowledged that the greenhouse screening consisting of knit fabric and backed aluminum foil is a composite good. However, Customs erred in stating that the screening contained plaiting material; it does not. The  -3-
polyester or polyethylene strips measure 5 mm or less in width and thus are considered textile strip materials of heading 5404, HTSUSA. As such, they are not within the definition of plaiting materials set forth in Note 1, Chapter 46, HTSUSA, which excludes strips and the like of chapter 54. The aluminum strips contained in the screening also fail to fall within the definition of plaiting material provided in Note 1, Chapter 46, HTSUSA.

Therefore, the issue is whether the classification of the screening is determined by the knit fabric or the aluminum foil strips. Before addressing this issue, Customs must first determine if the aluminum foil strips are backed aluminum or metalized textile strip. If the aluminum strips are textile, then the classification becomes much simpler as all the components would be textile.

Strip or the like of heading 5404 or 5405, combined with metal in the form of thread, strip or powder or covered with metal is classified in heading 5605, HTSUSA. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, the official interpretation of the Harmonized Tariff Schedule at the international level, offers the following information regarding heading 5605 at pages 777 and 778.

(1) Yarn consisting of any textile material (including monofilament, strip and the like and paper yarn) combined with metal thread or strip, whether obtained by a process of twisting, cabling or by gimping, whatever the proportion of the metal present. The gimped yarns are obtained by wrapping metal thread or strip spirally round the textile core which does not twist with the metal. Precious metals or plated metals are frequently used.

(2) Yarn of any textile material (including monofilament, strip and the like, and paper yarn) covered with metal by any other process. This category includes yarn covered with metal by electrodeposition, or by giving it a coating of adhesive (e.g., gelatin) and then sprinkling it with metal powder (e.g., aluminium or bronze).

The heading also covers products consisting of a core of metal foil (generally of aluminium), or of a core of plastic film coated with metal dust, sandwiched by means of an adhesive between two layers of plastic film.

The heading does not include:

(d) Wire or strip of gold, silver, copper, aluminium or other metals (Sections XIV and XV).

Heading 7607, HTSUSA, provides for: "Aluminum foil (whether or not printed, or backed with paper, paperboard, plastics or similar backing materials) of a thickness (excluding any backing) not exceeding 0.2 mm. EN 76.07 states that the "heading covers the products defined in Chapter Note 1(d), when of a thickness not exceeding 0.2 mm" and the "provisions of the Explanatory Note to heading 74.10 relating to copper foil apply, mutatis mutandis, to this heading."

Note 1(d), Chapter 76, defines plates, sheets, strip and foil, in relevant part, as:

Flat-surfaced products . . ., coiled or not, of solid rectangular (other than square) cross-section with or without rounded corners . . .of a uniform thickness, which are:

- of rectangular (including square) shape with a thickness not exceeding one-tenth of the width,

The EN 74.10, at page 1048, provides in part:

Foil classified in this heading is obtained by rolling, hammering or electrolysis. It is in very thin sheets. . . . * * * Other foil, such as that used for making fancy goods, is often backed with paper, paperboard, plastics or similar backing materials, either for convenience of handling or transport, or in order to facilitate subsequent treatment, etc. Foil remains in the heading whether or not it has been embossed, cut to shape (rectangular or otherwise), perforated, coated (gilded, silvered, varnished, etc.), or printed.

Having reviewed the pertinent ENs for heading 5605 and heading 7607, Customs agrees that the subject aluminum strips are not textile metalized yarn. The aluminum foil strips are not sandwiched between two layers of plastic film as described in EN 56.05. Instead, it appears the plastic coating serves as a backing for convenience of handling as described in EN 76.07. Therefore, we agree with your position taken in your submission of April 18, 1994, that the aluminum foil strips are not textile metalized yarn, but are backed aluminum strips of heading 7607.  -5-

The greenhouse screening at issue is a composite good of backed aluminum strips and knit fabric of man-made fibers. As a composite good, its classification is determined by application of GRI 3. In HRL 083975, Customs took the position that as a composite good, the headings under consideration were heading 6002, which provides for knit textile fabric; heading 4601, which provides for plaits and similar products of plaiting material; and heading 7607, which provides for aluminum foil. More specifically, the subheadings which were examined were subheading 6002.43.00, HTSUSA, which provides for other warp knit fabrics of man-made fibers; subheading 4601.99.00, HTSUSA, which provides for plaits and similar products of plaiting material; and subheading 7607.20.50, which provides for aluminum foil of a thickness not exceeding 0.2 mm.

Customs erred in identifying the headings which equally merit consideration for classification of the subject screen material. As explained above, the screening at issue does not contain plaiting material, thus heading 4601, HTSUSA, is not a heading which deserves consideration. In addition, subheading 7606.20.50, HTSUSA, was mistakenly identified as providing for "other articles of backed aluminum foil" when in fact the heading 7607, provides for aluminum foil (whether or not printed, or backed with paper, paperboard, plastics or similar backing materials) of a thickness (excluding any backing) not exceeding 0.2 mm. As the heading 7607 does not provide for articles of aluminum, the subheading cannot provide for such articles. It is our view that the proper headings to consider for classification of the composite good (screening) are heading 6002, HTSUSA, which provides for knit textile fabric and heading 7616, HTSUSA, which provides for other articles of aluminum.

You have submitted arguments that classification of the subject screening in subheading 7607.20.50, HTSUSA, in HRL 083975 was correct based upon your interpretation of the proper application of the GRIs. We disagree that the essential character is imparted by the backed aluminum strips and adhere to our position taken in HRL 083975 that no one component imparts the essential character of the good and that classification turns on application of GRI 3(c), i.e., classification is determined by that heading which appears last in the tariff from among the headings which equally merit consideration.

In your submission of April 1, 1993, you argue that assuming Customs conclusion that none of the components of the good impart its essential character is correct, then application of GRI 3(c) is proper. Applying GRI 3(c), you conclude that the screening is classified in heading 7607, HTSUSA, as backed aluminum as that heading appears last in the tariff schedule and heading 7607, HTSUSA, describes the backed aluminum strip component of the screening. -6-

The issue on which we clearly disagree, i.e, which heading, 7607 or 7616, is appropriate for consideration in the classification of the screening, can only be settled by a careful reading of GRI 2 and reference to the EN regarding the rule.

GRI 2 states, in relevant part:

(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. 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 classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. [bold added.]

The EN for GRI 2(b) states, in part:

(X) Rule 2(b) concerns mixtures and combinations of materials or substances, and goods consisting of two or more materials or substances. The headings to which it refers are headings in which there is a reference to a material or substance (e.g., heading 05.03 - horsehair), and headings in which there is a reference to goods of a given material or substance (e.g., heading 45.03 - articles of natural cork). It will be noted that the Rule applies only if the headings or the Section or Chapter Notes do not otherwise require (e.g., heading 15.03 - lard oil, not ... mixed).

(XII)It does not, however, widen the heading so as to cover goods which cannot be regarded, as required under Rule 1, as answering the description in the heading; this occurs where the addition of another material or substance deprives the goods of the character of goods of the kind mentioned in the heading.

GRI 3 states:

When by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The 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  -7-
to part only of the materials or substances contained in . . . composite goods . . ., those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. [bold added.]

(b) . . . [C]omposite goods consisting of different materials or made up of different components . . . 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. [bold added.]

(c) 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 among those which equally merit consideration.

Reading carefully the language of GRI 2(b) and GRI 3 with their accompanying ENs, in this case, Customs believes that in identifying the headings which equally merit consideration, we must identify the headings within which a "good" might fall, not simply the headings within which the materials with which it is made might fall. Thus, for example, an article consisting of aluminum wire and textile fabric (provided it meets the definition of "made up" in Note 7, Section XI) would be classifiable as either an other article of aluminum in heading 7616 or an other made up article of textile in heading 6307. Such an article would not be classifiable as textile fabric or aluminum wire although they are the components from which it is made because it would be more than the individual components from which it is made; it would be an article of these components. See, HRL 953138 of March 18, 1993 in which flexible, metallic mirrors were classified as other articles of aluminum in heading 7616, HTSUSA. In rejecting classification of the mirrors under heading 7606, HTSUSA, which provides for aluminum plates, sheets and strips, of a thickness exceeding 0.2 mm, Customs noted "the entire product is not an aluminum sheet, but an article made from aluminum sheets." Similarly, the screening at issue is not aluminum foil, but a good made from aluminum foil and man-made fiber knit fabric.

In applying GRI 2(b) and noting the applicable EN, Customs views the screening at issue as a "good" produced by the assembly of materials and not as a "material" consisting of a mixture or combination of other materials or substances. We do not believe this position conflicts with our view that the greenhouse screening is "material" and not a "part" and thus cannot be classified as a part under heading 8436, HTSUSA. It is our belief that the screening has been processed to the point of being recognizable as a commercial "good", i.e., screening, and  -8-
yet, it is not sufficiently processed to be identifiable as individual "parts". (See discussion below regarding heading 8436, HTSUS.)

Heading 7607 provides for "aluminum foil (whether or not printed, or backed with paper, paperboard, plastic or similar backing materials) of a thickness (excluding any backing) not exceeding 0.2 mm." Heading 7616 provides for "other articles of aluminum." While heading 7607 describes the backed aluminum strips which are part of the screening, the heading is not so broad as to encompass articles of backed aluminum foil. Customs views the screening as a "good" and that to consider classification of the screening in heading 7607 which merely describes a material which is part of the "good" would be contrary to EN XII for GRI 2(b) in that it would widen the coverage of the heading. As heading 7607 does not describe the "good" at issue, i.e., screening, it cannot be considered as a heading which equally merits consideration for classification of the item. The remaining heading which does encompass the screening in the language of its heading is heading 7616 which provides for "other articles of aluminum."

Support for Customs position may be found in the General ENs for Chapter 76 where it is stated at page 1063:

The Chapter covers:

(C) Products generally obtained by rolling, extruding, drawing or forging the unwrought aluminium of heading 76.01 (headings 76.04 to 76.07).

(D) Various articles specified in headings 76.08 to 76.15, and other articles of the residual heading 76.16 which covers all other aluminium articles other than those included in Chapter 82 or 83, or more specifically covered elsewhere in the Nomenclature.

The screening as a finished product is not the result of any of the processes named in (C) above. It is the product of a knitting and assembly process. In addition, EN 76.16, at page 1070, indicates that the heading includes, "in particular", cloth, grill and netting of aluminum wire and expanded metal. EN 76.16 directs us to look to the EN to heading 7314 for further information regarding these particular items which are clearly intended for classification within heading 7616.

Heading 7314 provides for cloth (including endless bands), grill, netting and fencing, of iron or steel wire; expanded metal of iron or steel. The EN for heading 7314 provides the following information:

The products of this group are, in the main, produced by interlacing, interweaving, netting, etc., iron or steel wire by hand or machine. The methods of manufacture broadly resemble those used in the textile industry (for simple warp and weft fabrics, knitted or crocheted fabrics, etc.).

The term "wire" means hot- or cold-formed products of any cross-sectional shape, of which no cross-sectional dimension exceeds 16 mm, such as rolled wire, wire rod and flat strip cut from sheet (see Note 2 to this Chapter).

The material may be in rolls, in endless bands (e.g., for belting) or in sheets, whether or not cut to shape; it may be of two or more ply.

[Emphasis added.]

We believe that the pertinent ENs show an intent on the part of the drafters of the Harmonized System to classify aluminum cloth in heading 7616. Thus, a cloth or fabric of composite materials which include an aluminum component where classification is determined by that aluminum component, such as the screening at issue, is properly classified in heading 7616 as an other article of aluminum.

For all the reasons stated above, Customs believes that heading 7616, other articles of aluminum, is the proper heading of Chapter 76 to be considered with heading 6002, other knit fabric, in determining classification of the screening by application of GRI 3(c). Applying GRI 3(c), the greenhouse screening at issue is properly classified in heading 7616.

It has been suggested that heading 7607 includes numerous articles of aluminum foil, including aluminum can stock and etched capacitor foil at the eight and ten digit level subheadings. As to this argument, Customs points out that classification under the tariff is hierarchical starting at the four digit international level and working down to the United States statistical level. If an item does not meet the terms of the four digit heading, it is not classifiable within that heading regardless that it may be specifically provided for at the six, eight or ten digit subheadings. It is our view that the -10-
screening at issue does not fall within the four digit heading description of heading 7607 and therefore, the fact it may be analogous to an item provided for within the subheadings at the statistical level of heading 7607 is irrelevant.

ADDITIONAL ARGUMENTS FOR CLASSIFICATION UNDER HEADING 8436, HTSUSA, AS PARTS OF AGRICULTURAL MACHINERY

As stated at the beginning of this ruling letter, Customs adheres to that portion of HRL 083975 addressing the issue of classification under heading 8436, HTSUSA. We do not believe we erred in rejecting that classification based on our view that the greenhouse screening is "material" and not a "part" and thus cannot be classified as a part under heading 8436, HTSUSA.

In your submission of April 1, 1993, you made additional arguments for classification of the goods at issue under heading 8436, HTSUSA. Specifically, you cited Customs rulings issued subsequent to HRL 083975 as support for your position that the screening may be a "part". Customs rejected consideration of the screening as a "part" on the basis that the material is not processed to the point where individual articles are identifiable with certainty. The screening is not cut to specific lengths or marked for cutting. Thus, imported in material lengths, each roll of screening contains an undeterminable number of screens which cannot be individually identified.

In HRL 083325 of May 1, 1989, Customs issued a ruling on the classification of four types of steel plates. One of these types was cut to standard width, was longer than required for actual use, was not marked to indicate its exact length (for cutting purposes), and required grinding, polishing and cutting after importation but prior to use. This fourth type of plate was about three inches longer than required for use. Customs held that all four types of plates were classifiable as parts of machinery in Chapter 84, HTSUSA. You submit that this ruling is contradictory to HRL 083975. We disagree.

The ENs for Section XVI, of which Chapter 84 is part, state in regard to machinery parts, at page 1132: "Machinery parts remain classified in the section whether or not finished ready for use." The EN indicates that a machinery part need not be "finished ready for use" to be classified as a part. But as stated in HRL 083975, an individual article must be identifiable with certainty. There is no doubt that the individual steel plate at issue in HRL 083325 was identifiable with certainty as one steel plate.

As to the companion case on the steel plates that you refer to, HRL 083371 of April 25, 1990, that ruling addressed the  -11-
classification of the steel plates under the previous tariff, the Tariff Schedules of the United States. While decisions under previous tariffs may be informative and helpful, they are not controlling in regard to classification under the HTSUSA. HRL 083325 addressed the classification of these steel plates under the HTSUSA and Customs has addressed the distinction between that case and the screening at issue herein.

HRL 951565 of April 23, 1992, is cited by you in support of your argument that the screening is classifiable as a part. That ruling dealt with the classification of flat steel wire which was notched, and wire which was notched and holed, and which Customs classified as parts of windshield wipers. You state Customs classified the wire as a part because it had only a single use and was not susceptible of being made into other articles. We would point out that not only was the wire dedicated to use, but its identity was fixed with certainty, i.e, it required no further processing upon importation, not even cutting to length.

In addition to the rulings discussed above, you cited three court cases for support of your position. We believe those cases are distinguishable from the case at hand. In the first case, E.M. Chemicals v. United States, 920 F. 2d 910 (Fed. Cir. 1990), the goods at issue were certain liquid crystals used in liquid crystal displays. Due to the nature of the product as a liquid, we do not believe this case is on point as to whether the need to cut the screening to length should or should not preclude it from classification as a part of agricultural equipment.

As to the other two cases which you cite, Heraeus-Amersil v. United States, 640 F. Supp. 1331, 10 CIT 258 (1986), and Doherty-Burrows of Texas v. United States, 3 CIT 228 (1982), we believe they are distinguishable on the facts and by reference to Coraggio Design Inc. v. United States, 12 CIT 143 (1988). In all three cases, the courts looked to the test enunciated in United States v. Buss & Co., 5 Ct. Cust. Appls. 110, 113, T.D. 34138 (1914):

The rule expressed by the decisions just cited recognizes the fact that most small articles are not produced as individual or separate products of the loom, but for economy of manufacture are first woven "in the piece." The rule of decision is therefore established that where such articles are imported in the piece and nothing remains to be done except to cut them apart they shall be treated for dutiable purposes as if already cut apart and assessed according to their individual character or identity. This follows, however, only in case the character or identity of the articles is fixed with certainty and in case the woven piece in its entirety is not commercially capable of any other use. [Emphasis added.] -12-

As pointed out in Coraggio, at 145:

The exact point in the processing at which material becomes a partly finished article must be determined on the basis of the circumstances of each case. * * * Whether an importation is characterized as a "material" or "article" will vary according to the statutory language of each case. See, Sanwa, 9 CIT at 169. [Sanwa Foods, Inc. v. United States, 9 CIT 167 (1985)]

Thus, with this is mind, the court distinguished Doherty-Burrows, in Coraggio, stating that in Doherty-Burrows that:

"cut to length" was not a prerequisite to classification as a bale tie under the applicable tariff provision. * * * The character or identity of the merchandise in issue was fixed with certainty.

As Customs stated in HRL 083975, Coraggio is on point to the issue of whether the subject screening is "material" or a "part". The court distinguished Doherty-Burrows in Coraggio and we believe that for the same reasons it is distinguishable here.

Similarly, Customs believes that HRL 082694 of April 11, 1989, which you cite for support, is distinguishable from the case at hand. The issue in that ruling was whether certain red cedar short boards were classifiable as unfinished shakes or shingles. Doherty-Burrows was on point for the decision in that ruling. Thus, for the same reasons Doherty-Burrows is not on point here, neither is HRL 082694.

Customs believes Heraeus-Amersil must be viewed in the light of the court's comment in Coraggio at 145 and cited above. It is a separate case dependent on the language of the provisions involved therein. In addition, we believe that in Heraeus-Amersil the court looked to the manner in which the contact tape at issue was used, the "weld-then-cut" contact tape application method, and the form the article had to be in to be used in that manner. The form of the subject screening in rolls is not a requirement of its ultimate use. Customs adheres to its position stated in HRL 083975 that the screening at issue is not a "part" and therefore cannot be classified in heading 8436, HTSUSA, as parts of agricultural equipment.

HOLDING:

The greenhouse screening at issue is classified as an other article of aluminum in subheading 7616.90.5080, HTSUSA, dutiable at 5.1 percent ad valorem. HRL 083975 is hereby modified to incorporate the analysis and classification set forth herein.

In accordance with section 625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director
Commercial Rulings Division

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See also:

• Tariff No.: 4601.99.00 - Products nesi of plaiting materials, bound together in parallel strands or woven, in sheet form, nesi
• Tariff No.: 6002.43.00 - Warp knit fabrics nesoi (including those made on galloon knitting machines), of man-made fibers
• Tariff No.: 7607.20.50 - Aluminum, foil, w/thickness n/o 0.2 mm, backed, nesoi