The tariff classification of “noise barriers” from Canada.

N273845 May 12, 2016 CLA-2-44:OT:RR:NC:N4:234 CATEGORY: Classification TARIFF NO.: 4421.90.9780 Linda Labrosse Certified Customs Specialist 6568 Lavoie Street Val-Morin, Québec J0T 2R0 Canada RE: The tariff classification of “noise barriers” from Canada. Dear Ms. Labrosse: In your letter dated March 11, 2016, on behalf of Les Écrans Verts, you requested a tariff classification ruling. Illustrative literature and bills of materials were provided. The merchandise concerned is identified as five different models of noise barriers. The five models are as follows: 1- LEV (Les Écrans Verts) Green noise barrier – Double Willow 10 feet2- LEV (Les Écrans Verts) Green noise barrier – Willow & Oak 10 feet3- LEV (Les Écrans Verts) Green noise barrier – Willow & Metal Mesh 10 feet4- LEV (Les Écrans Verts) Green noise barrier – Double Willow 13 feet ASSEMBLED5- LEV (Les Écrans Verts) Green noise barrier – Willow & Oak 13 feet ASSEMBLED Model #1: “LEV (Les Écrans Verts) Green noise barrier – Double Willow 10 feet.” The barrier measures 10 feet high by five feet wide, and features a double woven willow façade. Each shipment will be imported in unassembled condition, and will contain: • Woven willow screen panels assembly (facings and backing panels) • Black locust for posts• Rock wool (sound/noise insulator) • Larch planks for finishing purpose• Hardware (screws, nuts, washers, etc.)Model #2: “LEV (Les Écrans Verts) Green noise barrier – Willow & Oak 10 feet.” The barrier measures 10 feet high by five feet wide, and features a woven willow façade and oak backing. Each shipment will be imported in unassembled condition, and will contain: • Woven willow screen panels assembly (for facings) • Oak backing panels assembly• Black locust for posts• Rock wool (sound/noise insulator)• Larch planks for finishing purpose• Hardware (screws, nuts, washers, etc.) Model #3: “LEV (Les Écrans Verts) Green noise barrier – Willow & Metal Mesh 10 feet.” The barrier measures 10 feet high by five feet wide, and features a woven willow façade and metal mesh backing. Each shipment will be imported in unassembled condition, and will contain: • Woven willow screen panels assembly (for facings) • Metal mesh for backings• Black locust for posts• Rock wool (sound/noise insulator)• Larch planks for finishing purpose• Hardware (screws, nuts, washers, etc.) Model #4: “LEV (Les Écrans Verts) Green noise barrier – Double Willow 13 feet ASSEMBLED.” The barrier measures 13 feet high by eight feet wide, and features a double woven willow façade. The bill of materials indicates that only the panel is assembled, and that the metal H-Beams for the posts and Hemlock plank covers used to cover the metal H-Beams have to be attached to the panel assembly. For tariff purposes, this will be considered an unassembled good. Each shipment will contain: • Prefabricated panels of 6,5’ high by 8’ wide (willow on both sides with Rock wool sandwiched) • Hemlock planks for finishing purpose (to cover the H Beam)• Metal H Beam for posts• Hardware (screws)Model #5: “LEV (Les Écrans Verts) Green noise barrier – Willow & Oak 13 feet ASSEMBLED.” The barrier measures 13 feet high by eight feet wide, and features a willow façade with oak backing. The bill of materials indicates that only the panel is assembled, and that the metal H-Beams for the posts and Hemlock plank covers used to cover the metal H-Beams have to be attached to the panel assembly. For tariff purposes, this will be considered an unassembled good. Each shipment will contain: • Prefabricated panels of 6,5’ high by 8’ wide (willow for facings and oak for backings)• Hemlock planks for finishing purpose (to cover the H Beam)• Metal H Beam for posts• Hardware (screws) The noise barriers of the merchandise concerned are depicted in photos as a type of “screen or fence,” which are claimed to be designed for purposes of mitigating noise and visual pollution, from roadways, industrial sites and other sources. The screens or fences act as barriers or walls against noise and unsightly mess. The merchandise concerned is stated to be tested and patented to meet the most stringent quality standards and noise absorbency performance requirements. Before undertaking an analysis of the General Rules of Interpretation (GRIs) to the Harmonized Tariff Schedule of the United States (HTSUS), we must define and construe the merchandise concerned, identified as “noise barriers.” When terms are not defined in the Harmonized Tariff Schedule of the United States (HTSUS) or the Explanatory Notes (ENs) to the HTSUS, they are construed in accordance with their common and commercial meaning – Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). The Online Oxford English Dictionary (OED) defines “screen” at 1. a., as a piece of furniture consisting usually of an upright board or of a frame hung with leather, canvas, cloth, tapestry, or paper, or of two or more such boards or frames hinged together. The Online Oxford Dictionary of American English defines a “screen” at 1A, as a fixed or movable upright partition used to divide a room, to give shelter from drafts, heat, or light, or to provide concealment or privacy. Unequivocally we can rule out that the “noise barriers” are articles of furniture, because they are not designed to fit and equip establishments with movable articles used in the readiness of an area for purposes of supporting various human activities. The “noise barriers” also do not divide a room, to give shelter from drafts, heat, or light, or to provide concealment or privacy. With case in point, we turn to the OED which defines “fence” at 5. a., as an enclosure or barrier (e.g. a hedge, wall, railing, palisade, etc.) along the boundary of a field, park, yard or any place which it is desired to defend from intruders. It is our opinion for tariff classification purposes that the merchandise concerned, “noise barriers,” are a type of fence used as a barrier, wall or hedge for mitigating noise and visual pollution. Classification under the HTSUS is made in accordance with the 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, GRIs 2 through 6 may then be applied in order. There is no single heading of the HTSUS that encompasses the composite nature of the “noise barriers” in their unassembled imported condition, and as such, GRI 1 is not applicable. Under GRI 2 (a), “any reference to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.” GRI 2 (a) does not apply when unassembled components of goods are imported separately. When component parts are imported as separate items, the goods are classified separately. Whereas, if component goods of unassembled articles are imported together, in equal quantities, even in separate boxes, the items are aggregated to determine the appropriate classification – see Headquarters ruling, HQ H079175 dated April 8, 2010. By application of GRI 2 (a), the “noise barriers” in their unassembled condition, made predominately from willow (“key building material”), have the essential character of wooden fences based upon their visual outward surface area, and more importantly, their visual outward appearance and aesthetics. We find that the willow materials that make up the fencing are not suitable for plaiting. Legal Note 1 to Chapter 46, HTSUS, states: In this chapter the expression “plaiting materials” means materials in a state or form suitable for plaiting, interlacing or similar processes; it includes straw, osier or willow, bamboos, rattans, rushes, reeds, strips of wood, strips of other vegetable material (for example, strips of bark, narrow leaves and raffia or other strips obtained from broad leaves), unspun natural textile fibers, monofilament and strip and the like of plastics and strips of paper, but not strips of leather or composition leather or of felt or nonwovens, human hair, horsehair, textile rovings or yarns, or monofilament and strip and the like of chapter 54. The willow materials of the “noise barriers,” due to their large diameter 1.5 inches to 2.5 inches, lack the flexibility for plaiting materials of Chapter 46, HTSUS. Consequently, the noise barrier fencing made predominately of willow cannot be classified in Chapter 46, HTSUS. See Headquarters ruling HQ 956983 dated January 30, 1995 and New York ruling NY B80491 dated January 13, 1997, both of which classified (GRI 1) reed and/or bamboo fencing in subheading 4421.90.7020, HTSUS, as assembled fence sections. We note that the reed and/or bamboo fencing was made of “wood” with minor consumable materials in the nature of wire or thread to hold each of the panel sections together, and that each of the panel sections was found to be complete, and thereby an assembled fence section. This is in contrast to the noise barrier fencing of the merchandise concerned which is unassembled. From the plain language of the subheading of 4421.90.70, HTSUS, “Pickets, palings, posts and rails, the foregoing which are sawn; assembled fence sections,” we find the noise barrier fencing does not fall with the goods listed in the subheading, nor are they assembled fence sections. Accordingly, the merchandise concerned is classifiable in subheading 4421.90.9780, HTSUS. The applicable subheading for the “noise barriers,” a type of unassembled fencing, will be 4421.90.9780, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Other articles of wood: Other: Other: Other: Other.” The rate of duty will be 3.3% ad valorem, if not found to be NAFTA eligible. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at https://hts.usitc.gov/current. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Neil H. Levy at neil.h.levy@cbp.dhs.gov. Sincerely, Deborah C. Marinucci Acting Director National Commodity Specialist Division