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«[On classification of screening product used in greenhouses, summary judgment for the Plaintiff.] Decided: August 17, 1999 Simons & Wiskin (Philip ...»

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case, the parties agree that the imported screens have one commercial use and are dedicated to that use upon importation. Any post-importation processing conducted by Svensson is minor processing attributable to the installation of the screens and does not alter the function or composition of the screen; in fact, Customs admits that the “post-importation addition of reinforcing tape and plastic hooks [does] not alter the shade factor or energy savings factor.” Def.’s Response at 17. Cutting the screens to size, sewing two screens together or adding tape and hooks are incidental processes which do not affect the classification of the screens, just as the undetermined quantity of liquid crystals to be used in the LCDs and the addition of a twist agent was immaterial to the classification of that merchandise in E.M. Chemicals. The Federal Circuit’s decision in Baxter Healthcare Corp.

of P.R. v. United States, No. 98-1343, 1999 U.S. App. LEXIS 14949 (Fed. Cir. 1999) does not mandate a contrary result although the court held that the proper classification of imported polypropylene filament was as a material under HTSUS 5404 rather than as part of a membrane oxygenator.

As the trial court in Baxter noted, whether merchandise is classified as a material or as an unfinished part is determined on a case by case basis. Baxter Healthcare Corp. of P.R. v. United States, ___ CIT ___, 998 F. Supp. 1133, 1147 (1998), aff’d, No. 98-1343, 1999 U.S. App. LEXIS 14949 (Fed. Cir. 1999) (citing Harding Co. v. United States, 23 C.C.P.A. 250 (1936)). As described by the Federal Circuit, in Baxter significant post-importation processing was required to create an

oxygenator from the imported polypropylene filament:

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Baxter, No. 98-1343 at 2.

The processing which occurs after importation to the screens in this case falls far short of that described above. Sewing two screens together and adding hooks and tape is similar to the cutting and welding in Heraeus-Amersil and the addition of the twist agent in E.M. Chemicals. Such processing does not preclude the classification of the screens as parts. It is clear to the Court that the environmental screens are a product so far advanced in manufacture as to serve no other purpose independent of the shade and heat retention systems.

This reasoning applies equally to the environmental screens containing backed aluminum foil strips. It is undisputed that their identity and use as parts of shade and heat retention systems are fixed upon importation just as the screens which do not contain aluminum. The fact that they are composed of backed aluminum foil strips does not take away from their function. In addition, these screens are also manufactured on the same specially designed and patented machine that manufactures the environmental screens that do not contain the backed aluminum foil strips.

Moreover, Customs admits that the “energy savings properties of the screens containing strips of backed aluminum foil is fixed at the time of manufacture and is not altered by any post-importation processing.” Def.’s Response at 15.

The Court also applies the same reasoning to the classification of the insect screens and to the screens used as greenhouse roofs. Like the environmental screens, the greenhouse roof screens are manufactured on the specially designed and patented machine. Pl.’s Br. at 9. The greenhouse roof screens are imported and used exclusively as parts of shade and heat retention systems. Pl.’s Response at 25. The Court concludes that these screens are an integral part of shade and heat

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greenhouse operators to better regulate the environment of a greenhouse, to regulate the application of chemicals and pesticides as well as irrigation, and to permit plants growing within an enclosed greenhouse to benefit from favorable outside weather conditions. The Court has also visually inspected the greenhouse roof screens and, as it found for the environmental screens, concludes that these screens are so far advanced in manufacturing as to be parts of a distinct article. The greenhouse roof screens are dedicated to and commercially fit for use as greenhouse roof screens and are incapable of being made into more than one article.

The insect screens are also imported for and used exclusively in greenhouses as parts of pollination and pest control systems. Id. at 24. The insect screens, however, are manufactured on a conventional warp knitting machine. Nevertheless, these screens are in an advanced state of manufacture. Each of the six screens is designed and manufactured with a different size rectangular opening to take into account varying insect populations. Moreover, it is not disputed that the screens have no commercial use other than as insect screens. Id.

Therefore, the environmental screens whether or not containing backed aluminum foil strips, the greenhouse roof screens, and the insect screens, should all be classified under HTSUS subheading 8436.99.00 as parts of agricultural machinery.

Having held that the products in question may be classified under HTSUS 8436.99.00, as parts of agricultural machinery, the Court does not find it necessary to reach the parties’ alternative

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IV. Conclusion Therefore, the Court rules that the imported merchandise, i.e., the environmental screens manufactured either with or without backed aluminum foil strips, the insect screens, and the plastic laminated screens used as greenhouse roofs, should be classified under the subheading HTSUS 8436.99.00, as parts of agricultural machinery.

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Dated: _____________________

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