CLA-2 CO:R:C:M 955432 KCC

District Director
U.S. Customs Service
477 Michigan Avenue
Detroit, Michigan 48226

RE: Protest 3801-93-103448; shade and heat retention systems; steel supports, electric motors, steel tubing, brackets, pulleys, steel pipes and cables, fasteners, miscellaneous components and screens; 8436.80.00; other agricultural and horticultural machinery; EN 84.36; GRI 3(b); composite good; essential character; EN Rule 3(b); screening material; HRL 954785; HRL 955113; HRL 952072; HRL 083975; HRL 088546

Dear District Director:

This pertains to Protest 3801-93-103448, concerning the tariff classification of shade and heat retention systems under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise at issue is Carvo Equipment Ltd. shade and heat retention systems (shade and heat retention systems). The protestant describes the shade and heat retention systems as essentially complete systems comprised of steel supports, electric motors, steel tubing, brackets, pulleys, steel pipes and cables, fasteners, miscellaneous components and screens. Each shade and heat retention system is made to the customer's specifications. Therefore, screening materials for each system are different, but may include textile material, textile material blend incorporating backed aluminum foil, Alupor which is 50% aluminum, 40% polypropylene, and 10% rayon, and other variations. The shade and heat retention systems are designed for frost control, shading, cooling, photo period control and other considerations affecting the greenhouse, market gardens or similar structures. Additionally, the protestant's submitted product information indicates that the shade and heat retention systems can be "[c]ustom designed curtain systems for institutional and architectural applications."

Upon importation, the entries of the shade and heat retention systems with textile screening material not containing aluminum foil strips were liquidated starting on July 9, 1993, under subheading 6307.90.99, HTSUS, as other made up articles. In a protest timely filed on September 20, 1993, the protestant contends that the shade and heat retention systems are properly classified under subheading 8436.80.00, HTSUS, as other agricultural and horticultural machinery. The competing subheadings are as follows:

6307.90.99 Other made up articles, including dress patterns...Other...Other...Other....

8436.80.00 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...Other machinery....

ISSUE:

Are the shade and heat retention systems classified as other made up articles under subheading 6307.90.99, HTSUS, or as other agricultural and horticultural machinery under subheading 8436.80.00, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes...."

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive, 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. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 84.36 (pgs. 1216-1219) states that heading 8436, HTSUS, covers:

...machinery, not falling in headings 84.32 to 84.35, which is of the type used on farms (including agricultural schools, co-operatives or testing stations), in forestry, market gardens, or poultry-keeping farms or the like. However, it excludes machines clearly of a kind designed for industrial use (emphasis in original).

EN 84.36 lists exemplars of the class or kind of articles classifiable under heading 8436, HTSUS, as other agricultural and forestry machinery. The exemplars included seed dusting machines, fertilizer crushing or mixing mills, machines for cutting slips, hedge cutting machines, machines and appliances for preparing fodder, automatic watering troughs, mechanical clippers, tree uprooters, tree-felling machines, tree transplanters, stump removers, and machines for chipping branches, twigs, etc.

We are of the opinion that the shade and heat retention systems under consideration are not of the same class or kind of agricultural or horticultural machines listed in the EN exemplars to heading 8436, HTSUS. The shade and heat retention systems do not cut, crush, water, clip, grip, fell, remove, chip, etc. The shade and heat retention systems are not in the nature of a tool used in the place of a hand tool engaged in agricultural or horticultural work, as the overwhelming majority of machines are in EN 84.36. Instead, the shade and heat retention systems are merely mechanized shade and heat retention systems used to control the environment of a structure, in this case the structure of a greenhouse, market garden or similar structure.

Moreover, the protestant's submitted product information indicates that the shade and heat retention systems can be "[c]ustom designed curtain systems for institutional and architectural applications." The institutional and architectural applications indicate that the shade and heat retention systems are not limited to agricultural or horticultural applications, but can be custom designed to fit any customer's needs. Therefore, the shade and heat retention systems are not classified as other agricultural or horticultural machinery under subheading 8436.80.00, HTSUS, pursuant to GRI 1, HTSUS.

The shade and heat retention systems consists of different components, i.e., electric motor, screening materials, structural elements, which are classified in various headings of the HTSUS. When by application of GRI 2, HTSUS, goods are prima facie classifiable under two or more headings, GRI 3, HTSUS, is applicable. In this case, classification is determined by application of GRI 3(b), HTSUS, which provides:

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, 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.

EN Rule 3(b)(IX)(pg. 4) states that:

For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts (emphasis in original).

We are of the opinion that the shade and heat retention systems are composite goods because the components are adapted one to the other, mutually complementary, and together form a whole which would not normally be offered for sale in separate parts to control the environment of a greenhouse or similar structure. Therefore, we need to determine which component imparts the essential character.

In general, essential character has been construed to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. In addition, EN Rule 3(b) (pg. 4), provides further factors which help determine the essential character of goods. Factors such as bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods are to be utilized, though the importance of certain factors will vary between different kinds of goods.

A similar issue was discussed in Headquarters Ruling Letter (HRL) 954785 dated September 22, 1993, which classified a steel structure for a non-motorized shade house system. The complete shade house consisted of a steel structure covered by a shade cloth and was used to protect sun-sensitive plants from direct sunlight. In HRL 954785 we held that the steel structure without shade cloth could not be classified as a complete shade house system pursuant to GRI 2(a), HTSUS, because it did not have the essential character of a complete shade house system. The essential character of the complete shade house system was the shade cloth because the shade cloth is the component which protects the plants from the sunlight. See also, HRL 955113 dated November 16, 1993, in which we held that an unassembled greenhouse without glass panes did not have the essential character of a completed greenhouse since the glass panes, which create the controlled environment, were not present, and HRL 952072 dated September 16, 1992, in which a windscreen and steel tubing were classified under subheading 6307.90.99, HTSUS, pursuant to GRI 3(b), HTSUS, because the essential character of the composite good was determined to be the windscreen.

The shade and heat retention systems under consideration and the shade house systems in HRL 954785 are similar in that they both provide a stable environment in which to grow plants, flowers and the like. The difference is that the shade and heat retention systems at issue are motorized and designed for more sophisticated applications. Based on the HRLs and information provided, we are of the opinion that the essential character of the shade and heat retention systems at issue is the screening material. It is the screening material which controls the environment of the structures in which the shade and heat retention systems at issue operate. Therefore, the screening material imparts the essential character to the shade and heat retention systems and the entire shade and heat retention systems are classified under the tariff provision for the screening material in each system.

Various screening materials of this type were classified in HRL 083975 dated April 11, 1990, which is presently being reconsidered in HRL 088546. Based on the analysis of the screening materials in HRL 083975 and the fact that the screening material at issue is composed of textile material not containing aluminum foil strips, we are of the opinion that the screening material, and therefore, the entire shade and heat retention systems at issue, are classified under subheading 6307.90.99, HTSUS, as other made up articles. We note that other shade and heat retention systems may be composed of different screening material and, therefore, will be classified under other tariff provisions based on the classification of the screening material at issue in those shade and heat retention systems.

HOLDING:

The subject shade and heat retention systems are composite goods classified pursuant to GRI 3(b), HTSUS, with the essential character imparted by the screening material. Therefore, as the screening material at issue is composed of textile material not containing aluminum foil strips, the entire shade and heat retention systems at issue are classified under subheading 6307.90.99, HTSUS, as other made up articles.

The protest is DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed, with the Customs Form 19, 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, Lexis, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division