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HQ 958809




May 23, 1996

CLA-2 RR:TC:MM 958809 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 8422.40.90

Port Director
U.S. Customs Service
555 Battery Street
San Francisco, CA 94111

RE: Protest 2809-95-101474; RoseMatic Rose Grading Machines; Measuring or Checking Instruments, Appliances and Machines; Packing and Wrapping Machinery; Functional Unit; Headings 8422, 8433, 9031; EN 84.22; Legal Note 4 to Section XVI; Legal Note 3 to Chapter 90; HQs 086535, 952995

Dear Port Director:

The following is our decision regarding Protest 2809-95-101474, which concerns the classification of rose grading machines under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise is the Olimex RoseMatic rose grading machine, which grades and bunches roses of similar lengths and thicknesses. According to the information provided, roses are hung, by hand, one by one, into the plastic rose-carrier. The rose is then transported along a station that measures the length and thickness of the rose by means of a camera vision system. The merchandise can be adjusted for different choices (i.e., two different lengths are bunched by turns on the same station). After the length and thickness is measured, the roses are transported to one or more length stations, where the roses are counted and divided in bunches (adjustable amounts from 5 to 25 roses per bunch). The bunches are then bound together with string. An air-pressure arm assures that the bunch is held in optimum position while being bound. After binding, the bunch is transported to the cutting-unit. This unit consists of two special steel knives, operated at low speed, that cut the bunch at a pre-programmed length. A special push-arm then gently shoves the bunch out of the station, while at the same time a robot-arm carefully places the bunch without damaging it, into the bunch-collect-mat.

The information further provides that the subject merchandise may be used by greenhouse owners to bunch the roses and ship the bunches to either flower wholesalers or flower retailers. Previous models of rose grading machines used electronic switches instead of cameras to measure the length and thickness of the roses.

The merchandise was entered on January 6 and April 8, 1995, under subheading 8433.60.00, HTSUS, as machines for cleaning, sorting or grading eggs, fruit or other agricultural produce. The entries were liquidated on August 25, and September 8, 1995, under subheading 9031.40.90, HTSUS, as other optical measuring and checking instruments and apparatus. The protest was timely filed on October 23, 1995.

The following subheadings from the 1995 HTSUS are under consideration:

8422.40.90: Dishwashing machines; machinery for cleaning or drying bottles or other containers; machinery for filling, closing, sealing, capsuling or labeling bottles, cans, boxes, bags or other containers; other packing or wrapping machinery; machinery for aerating beverages . . . : Other packing or wrapping machinery: Other. . . .

Goods classifiable under this provision have a duty rate of 2.9 percent ad valorem.

8433.60.00: Harvesting or threshing machinery, including straw or fodder balers; grass or hay mowers; machines for cleaning, sorting or grading eggs, fruit or other agricultural produce, other than machinery of heading 8437; parts thereof: Machines for cleaning, sorting or grading eggs, fruit or other agricultural produce. . . .

Goods classifiable under this provision have a duty rate of free.

9031.40.90: Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter. . . : [o]ther optical instruments and appliances: [o]ther: [o]ther. . . .

Goods classifiable under this provision have a duty rate of 8.7 percent ad valorem.
ISSUE:

Whether the RoseMatic rose grading machine is classifiable as a measuring and checking instrument or as a packing and wrapping machinery under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

The protestant claims that the previous models of rose grading machines that used electronic switches instead of cameras to measure the length and thickness of roses were classifiable under heading 8433, HTSUS, as machines for cleaning, sorting or grading eggs, fruit or other agricultural produce. Protestant believes that the subject merchandise which performs the same function as previous models only using modern technology should also be classifiable under heading 8433, HTSUS. However, the subject merchandise does not meet the terms of heading 8433, HTSUS, because the process of bunching roses is not an agricultural or horticultural pursuit, but a "manufacturing" pursuit [see HQ 952995, dated March 10, 1993, in which Customs determined that the processing of maple sap into maple syrup even though on a farm, was not an agricultural or horticultural activity]. The process of sorting, bunching, and cutting are steps taken to make roses more marketable either to wholesalers or to retail shops after the roses have been harvested. We further note that the provision claimed by the protestant refers to agricultural produce. The term "produce" is limited to fresh fruits and vegetables. See HQ 086535, dated June 13, 1990. Because roses do not meet the term "produce", classification under heading 8433, HTSUS, is precluded.

Legal Note 4 to Section XVI, HTSUS, provides that: "Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in chapter 84 or chapter 85, then the whole falls to be classified in the heading appropriate to that function." This provision also applies to articles in chapter 90, HTSUS. See Legal Note 3 to Chapter 90, HTSUS.

The rose grading machine was classified under heading 9031, HTSUS, as measuring or checking instruments, appliances and machines. To be classified under this provision, the subject merchandise must have the clearly defined function of measuring or checking. There is no dispute that the rose grading machine measures the lengths and thickness of roses. However, the subject merchandise also counts and divides roses into bunches. It also binds the bunches and cuts the bunches at a pre-programmed length. All of these operations are important to the function of the subject merchandise. Therefore, we find that the rose grading machine does more than a measuring function, but also a sorting, counting, packaging, and cutting function.

Heading 8422, HTSUS, provides for other packing or wrapping machinery. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the HTSUS. While not legally binding or dispositive, the ENs 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. 89-80, 54 FR 35127, 35128 (August 23, 1989). EN 84.22 provides in pertinent part that:

Machines which in addition to packing, wrapping, etc., also perform other operations remain classified in the heading provided the additional operations are incidental to the packing, etc. Thus machines which pack or wrap goods into the forms or presentations in which they are normally distributed and sold in commerce, are classified in this heading, whether or not the machines also contain devices for weighing or measuring. Similarly the heading includes machines incorporating devices which, as a secondary function, cut, mold or press previously prepared products into purely presentational forms without affecting their essential character (e.g., machines for molding butter or margarine into blocks, etc., and wrapping them). The heading does not, however, cover machines whose primary function is not to pack, wrap, etc., but to manufacture raw or semi-finished materials into finished products (e.g., combined cigarette making and packaging machines).

We find that the rose grading machine is classifiable as a functional unit under heading 8422, HTSUS, because the measuring of the length and thickness of the rose is incidental to the packing, wrapping and cutting of the roses into bunches which are sold to either flower wholesalers or flower retailers.

HOLDING:

The Olimex RoseMatic rose grading machine is classifiable under subheading 8422.40.90, which provides for other packing or wrapping machinery. Goods classifiable under this provision have a duty rate of 2.9 percent ad valorem.

The protest should be DENIED, except to the extent that reclassification of the merchandise as indicated above results in a partial allowance. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed 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, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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