CLA-2 RR:CR:GC 964993 GOB
U.S. Customs Service
200 St. Paul Place
Baltimore, MD 21202
RE: Protest 1303-00-100236; Insulating materials
This is our decision regarding Protest 1303-00-100236, filed on behalf of AGRO Dynamics, Inc. (“protestant”) concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of certain insulating materials.
The file reflects the following. The subject entry was filed on September 28, 1999 and was liquidated on August 11, 2000. The protest was filed on October 19, 2000.
The goods at issue was entered under subheading 6806.10.00, HTSUS, as: “Slag wool, rock wool and similar material wools . . . mixtures and articles of heat-insulating, sound-insulating or sound-absorbing mineral materials; other than those of heading 6811 or 6812, or of chapter 69: Slag wool, rock wool and similar mineral materials (including intermixtures thereof), in bulk, sheets or rolls." The entry was liquidated under that same provision.
The protestant now claims that the insulating materials are classified in either subheading 6806.90.00, HTSUS, or in subheading 9817.00.50, HTSUS.
What is the classification under the HTSUS of the subject goods?
LAW AND ANALYSIS:
We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). 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 GRI’s may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s 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.
The HTSUS provisions under consideration are as follows:
6806 Slag wool, rock wool and similar material wools . . . :
6806.10.00 Slag wool, rock wool and similar material wools (including intermixtures thereof), in bulk, sheets or rolls
* * * *
* * * *
9817.00.50 Machinery, equipment and implements to be used for
agricultural or horticultural purposes.
As stated above, the protestant entered the subject goods under subheading 6806.10.00, HTSUS, and now claims that they are classified in either subheading 6806.90.00, HTSUS, or in subheading 9817.00.50, HTSUS. However, the protestant has not provided any documentary evidence in support of its claims. We therefore find that there is no basis upon which relief may be granted.
Customs has stated that certain conditions must be met for classification in subheading 9817.00.50, HTSUS. In HQ 086883 dated May 1, 1990, we stated:
To be classified within this provision [subheading 9817.00.50, HTSUS] the goods must meet three prerequisites. First, the articles must not be among the long list of exclusions to headings 9817.00.50 and 9817.00.60, HTSUSA, under Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, HTSUSA. Secondly, the terms of the heading must be met in accordance with General Rule of Interpretation 1, HTSUSA. Heading [sic] 9817.00.50 describes: “Machinery, equipment anf implements to be used for agricultural or horticultural purposes.” This determination focuses upon the specific agricultural or horticultural pursuit in question and what machine, equipment or implement performs this pursuit. Thirdly, the merchandise must have the actual use certification required under 10 [sic; should be 19] C.F.R. 10.138.
See also HQ 087076 dated June 14, 1990, and HQ 961431 dated December 1, 1998.
Further, with certain exceptions not pertinent here, U.S. Note 2(f) to Subchapter XVII, provides that subheading 9817.00.50, HTSUS, does not apply to articles provided in section XIII, which includes Chapter 68, HTSUS.
As detailed above, there is no basis upon which relief may be granted. The insulating materials are classified in subheading 6806.10.00, HTSUS, as: “Slag wool, rock wool and similar material wools . . . mixtures and articles of heat-insulating, sound-insulating or sound-absorbing mineral materials; other than those of heading 6811 or 6812, or of chapter 69: Slag wool, rock wool and similar mineral materials (including intermixtures thereof), in bulk, sheets or rolls."
You are instructed to DENY the protest.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
John Durant, Director
Commercial Rulings Division