February 12, 2009 CBP Bulletin Notice on Classification of Certain Greenhouse Tunnels
In the February 12, 2009 issue of the U.S. Customs and Border Protection Bulletin (Vol. 43, No. 8), CBP published a notice proposing to revoke one ruling and a treatment as follows:
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Proposed revocation of ruling; proposed revocation of treatment. CBP is proposing to revoke a ruling on the classification of certain greenhouse tunnels. Additionally, CBP proposes that this notice covers any rulings on this merchandise that may exist but have not been specifically identified. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.
CBP states that any party who has received a contrary written ruling or decision on the merchandise that is subject to the proposed revocations, or any party involved with a substantially identical transaction, should advise CBP by March 14, 2009, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.
Greenhouse tunnels. The merchandise at issue is described as "Haygrove multi-bay tunnels for flower and vegetable growing." According to the submitted information, the products are designed for sheltered sites where crops need low cost protection during spring, summer and early autumn. Features include steel frame construction, wire bracing, open end kit strut system enabling full tractor access, and Visqueen polythene covering. The Visqueen polythene covering is a polyethylene film which is included in the greenhouse tunnel kits as large rolls of 800m in various widths ranging from 8m to 12m. There are no holes or grommets in the rolls. The film is clipped onto the tunnels' steel frames.
CBP is proposing to issue HQ H035698 in order to revoke HQ H011657 and determine that the greenhouse tunnels are classified under HTS 3920.10.00 as "Other sheets of plastics, of polymers of ethylene, rather than under HTS 6306.22.9030 as "Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods."
CBP proposes this change as a correction based on additional information. As noted in HQ H011657, numerous attempts were made to obtain a swatch of the polyethylene material, however, none were successful. In the absence of evidence to the contrary, it was presumed that the polyethylene was formed from fabric woven from strips not measuring over 5mm in width. Accordingly, the merchandise was not excluded from classification in Section XI as a textile article, or from Chapter 63. However, in the request for reconsideration, new evidence was provided that the polyethylene sheeting is not strip. Rather, it is 800m rolls of varying lengths of solid, non-woven polyethylene. Insofar as the Visqueen polythene is not a textile material, it is excluded from Chapter 63, by Note 1 to Chapter 63. The Visqueen polythene which is imported in continuous rolls meets the terms of Note 10 to Chapter 39.
The Visqueen polythene covering is classified in HTS 3920, and the steel frame in HTS 7308. CBP proposes that the essential character of the greenhouse tunnel is the polythene. The steel frame predominates by weight and provides strength and support to the greenhouse tunnel and gives form and shape to it. However, considering bulk or size, the covering clearly predominates over the steel frame. More importantly, however, the greenhouse tunnel is designed to provide low cost protection for crops. This is how it is marketed and why users purchase it. The Visqueen polythene covering is the component that affords crops protection from inclement weather. For these reasons, CBP concludes that it is the Visqueen polythene which imparts the essential character to the greenhouse tunnels.
CBP now proposes that by application of GRI 3, the Haygrove Tunnel systems are classified in subheading 3920.10.00, which provides for "Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other material: of polymers of ethylene." In addition, CBP now proposes that the goods are eligible for duty-free entry under HTS 9817.00.5000 as "machinery, equipment and implements to be used for agricultural or horticultural purposes," provided that the actual use requirements of 19 CFR 10.131 through 10.139 are met.
Proposed: 3920.10.00, 4.2%; and eligible for duty-free treatment under heading 9817.00.50, provided the actual use requirements of 19 CFR 10.131-10.139 are satisfied.
Current: 6306.22.9030, 8.8%; and excluded from classification under heading 9817, pursuant to U.S. Note 2 to Subchapter XVII of Chapter 98 (because 6306 is textile.)
February 12, 2009 CBP Bulletin (Vol. 43, No. 8) available athttp://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2009/