CLA-2 RR:TC:MM 958809 RFA
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
Division