CLA-2 OT:RR:CTF:TCM H011657 HkP
Port Director
Port of Portland
U.S. Customs and Border Protection
8337 NE Alderwood Road Portland, OR 97220
RE: Application for Further Review of Protest No. 2904-07-100028; greenhouse tunnels
Dear Port Director:
This is our decision regarding the Application for Further Review of Protest no. 2904-07-100028, timely filed on behalf of Haygrove Limited (“Haygrove”), concerning the classification of greenhouse tunnels under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The entries at issue are described in the entry documents as “Haygrove multi-bay tunnels for flower and vegetable growing.” Protestant has submitted marketing information on Haygrove 3 and 4- Series tunnels to this office.
According to the submitted information, the Haygrove 3-Series is designed for sheltered sites where crops need low cost protection during spring, summer and early autumn. The 3-Series is used for four raised beds of strawberries, summer flowers and high value vegetable crops. Features include:
frame constructed using 35mm steel
bay width from 5.5 m (18 ft.) up to 7.2 m (24 ft.)
built on 1.5 m (5 ft.) or 2 m (6.5 ft.) legs
Open-end kit strut system enabling full tractor access
Wire bracing using top, leg and star wire systems
All steel pre-galvanised both outside and inside the steel tube
Visqueen polythene, shade net or insect net provided.
The 4-Series is used by growers for five raised beds of strawberries, raspberries, high value flowers, salads, vegetables, ornamentals and nursery stock. Its features are similar to the 3-series but for the width of the bay, the height of the legs and the gauge of the steel.
Protestant attempted to enter the merchandise under subheading 9817.00.5000, HTSUSA, using the Remote Location Filed (RLF) program on May 31, 2006. CBP rejected the RLF entry on June 8, 2006, because subheading 9817.00.5000 is an actual use provision and actual use entries may not be filed using the RLF program. On that same date, the Port advised Protestant by means of the Entry/Summary Rejection Sheet that the entry could be brought into compliance by one of two methods:
The Electronic Entry could be revised to reclassify the goods appropriately within the first 97 chapters of the tariff and the applicable duties and fees paid, or
The Electronic Entry could be deleted and an entry filed by a broker that is licensed to conduct customs business within the Port of Portland area.
Protestant did not respond to this notification. CBP personnel then emailed Protestant on June 14, 2006, as a follow up to the notice. After receiving no response, CBP issued a Notice of Action on July 14, 2006, proposing to deny the duty-free claim under heading 9817 and to reclassify the merchandise under subheading 6306.22.9030, HTSUSA. Again, Protestant did not respond to CBP. On August 28, 2006, CBP issued a Notice of Action notifying Protestant that the entry would be liquidated under subheading 6306.22.9030. CBP liquidated the entry on September 22, 2006.
ISSUE:
What is the correct classification of the greenhouse tunnels?
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 90 days of liquidation of the first entry for entries made before December 18, 2004, and within 180 days of liquidation of the first entry for entries made on or after
December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 2704-05-102242 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Specifically, Protestant alleges the action of the Port is inconsistent with Headquarters Ruling Letter (“HQ”) 956727, dated October 25, 1994, in which CBP classified structural steel components of a floating dock as other structures of iron or steel.
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 2006 HTSUS provisions under consideration are as follows:
6306 Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods:
* * *
Tents:
* * *
6306.22 Of synthetic fibers:
* * *
6306.22.90 Other …..
* * *
6306.22.9030 Other (669) …..
7308 Structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge sections, lock gates, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, shutters, balustrades, pillars and columns) of iron or steel; plates, rods, angles, shapes, sections, tubes and the like, prepared for use in structures, of iron or steel:
* * *
7308.90 Other:
* * *
Other:
* * *
7308.90.95 Other …..
* * *
7308.90.9590 Other …..
9817.00.5000 Machinery, equipment and implements to be used for agricultural or horticultural purposes …..
Subheading 9817.00.5000 is located in Subchapter XVII of Chapter 98, HTSUS. U.S. Note 2 to that Subchapter provides, in relevant part:
The provisions of heading 9817.00.50 and 9817.00.60 do not apply to:
* * *
(e) articles of textile material[.]
The Port classified the greenhouse tunnels in subheading 6306.22.9030, HTSUSA, which provides for other tents of synthetic fibers, based on product descriptions on the importer’s and supplier’s websites. Note 1 to Chapter 63 states that “Subchapter 1 applies only to made up articles, of any textile fabric.” Thus, we must first determine whether the greenhouse is a made up article of textile fabric.
As previously noted, the Port concluded that the polyethylene is formed from fabric woven from strips not measuring over 5 mm in width. Note 1(g) to Section XI, which contains Chapter 63, excludes from the section, among other things, “strip or the like (for example, artificial straw) of an apparent width exceeding 5 mm of plastics (chapter 39)”. Given that the polyethylene does not exceed 5 mm in width, the greenhouse tunnel which is formed in part from the polyethylene is not excluded from classification in Section XI as a textile article, or from Chapter 63, HTSUS.
Heading 6306, HTSUS, provides for, in relevant part, tents. The Explanatory Notes to heading 6306 explain, in pertinent part:
Tents are shelters made of lightweight to fairly heavy fabrics of man-made fibres, cotton or blended textile materials, whether or not coated, covered or laminated, or of canvas. They usually have a single or double roof and sides or walls (single or double), which permit the formation of an enclosure. The heading covers tenets of various sizes and shapes, e.g., marquees and tents for military, camping (including backpack tents), circus, beach use. They are classified in this heading, whether or not they are presented complete with their tent poles, tent pegs, guy ropes or other accessories.
CBP has previously construed the class or kind of merchandise for which heading 6306, HTSUS, provides and has found, with regard to “tents”, that the heading is broad enough to encompass a variety of tents so long as they provide minimal protection from the elements. See Headquarters Ruling Letter (“HQ”) 962126, dated June 11, 1999. Specifically, with regard to greenhouses, which are used to protect plants, we have found that “the tariff does not restrict or qualify the nature of the subject which is to be protected from the elements; all that is required is that the structure itself have the capacity to provide minimum protection from the elements.” Id. Likewise, in this instance, we find that the greenhouse is classified under heading 6306, HTSUS, because it provides protection to plants from the elements. Furthermore, because the greenhouse is a textile article, we find that it is excluded from classification under heading 9817, HTSUS, pursuant to U.S. Note 2 to Subchapter XVII of Chapter 98. CBP has previously classified greenhouses comprised of metal frames and coverings of fabric produced by weaving polyethylene strip and coated or laminated with polyethylene in subheading 6306.22.9030, HTSUSA. See, for example, HQ 982129, dated June 11, 1999, and HQ 964230, dated September 28, 2001.
Finally, we address Protestant’s arguments that the merchandise at issue should be classified under subheading 7308.90.9590, HTSUSA, because it is similar to merchandise classified under that subheading in HQ 956727 (October 25, 1994). In HQ 956727, CBP classified galvanized steel structural components of floating docks in subheading 7308.90.95, HTSUSA. Given that the floating dock therein was composed entirely of steel components, it is distinguishable from the instant merchandise which consists of both textile and steel components. Moreover, we note that HQ 956727 may be inconsistent with CBP current position on the classification of the components of floating docks and may be subject to revocation.
HOLDING:
By application of GRI 1, the greenhouse tunnels are classified under heading 6306, HTSUS. They are specifically provided for in subheading 6306.22.9030, HTSUSA, which provides for: “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: Tents: Of synthetic fibers: Other: Other. The 2006 column one, general rate of duty is 8.8% ad valorem and the quota category is 669.
Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
No later than 60 days from the date of this letter, the Office of International Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP homepage on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division