CLA-2 CO:R:C:T 956621 SK
Mr. Jimmy Montgomery
Montgomery International, Inc.
223 S. Gov. Printz Blvd.
P.O. Box 124
Essington, PA 19029-0124
RE: Classification of mushroom growing nets; woven polyethylene;
imported in material lengths with no lines of demarcation; not a
"part" for agricultural machinery; Section XXII, Chapter 98,
Subchapter XVII, U.S. Note 2(e); HRL 087849 (5/22/91); HRL 950216
(12/19/91); The Harding Co. et al v. United States, 23 CCPA 250,
T.D. 48109 (1936); American Import Co. v. United States, 26 CCPA
72, 75, T.D. 49612 (1938); F.H. Paul & Stein Bros., Inc. v.
United States, 44 Cust. Ct. 130, C.D. 2166 (1960); Sandvik Steel,
Inc. v. United States, 66 Cust. Ct. 12, C.D. 4161, 321 F.Supp.
1031 (1971); Naftone, Inc. v. United States, 67 Cust. Ct. 340,
C.D. 4294 (1971); Bendix Mouldings, Inc. v. United States, 73
Cust. Ct. 204, C.D. 4576, 388 F. Supp. 1193 (1974); Avin
Industrial Products Co. v. United States, 72 Cust. Ct. 43, C.D.
4503, 376 F. Supp. 879, reh denied, 72 Cust. Ct. 147, C.D. 4522
(1974).
Dear Mr. Montgomery:
This is in response to your letter of March 14, 1994, on
behalf of the Mushroom Research Data Corporation (MRD Corp.),
requesting a binding classification ruling for two styles of
mushroom growing nets. Customs is in receipt of samples of the
subject merchandise.
FACTS:
At issue are two styles of mushroom growing nets, referenced
style numbers 43009 and 43109. The style numbers on the submitted
samples do not match the style numbers for which you have
requested a binding classification ruling, however you have
indicated that manufacturer's style 66503 corresponds to style
43009 and manufacturer's style number 66703 corresponds with
style 43109.
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Both submitted samples are woven fabrics manufactured of 100
percent filament polyethylene that has been dyed black. Both are
constructed using 600 denier monofilaments in both the warp and
the filling. The fabrics will be imported in widths ranging
between 132 and 183 centimeters. Style 43009 weighs
approximately 251.2 grams per square meter and style 43109 weighs
approximately 301.4 grams per square meter. Style 43009 is plain
woven and style 43109 has been woven with a taped warp
characterized by each group of three warp ends being woven as
one. The submitted samples have not been coated.
ISSUES:
What is the proper classification of the subject
merchandise?
Are these fabrics, imported in material lengths with no
lines of demarcation, classifiable under subheading 8432.90.0080,
HTSUSA, as "parts" of agricultural machinery?
Are these fabrics eligible for duty-free treatment under
subheading 9817.00.60, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
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, taken in
order. Merchandise that cannot be classified in accordance with
GRI 1 is to be classified in accordance with subsequent GRI's.
In your submission to this office, you seek classification
of the subject fabric under subheading 8432.90.0080, HTSUSA,
which provides for, inter alia, parts of other agricultural,
horticultural or forestry machinery for soil preparation or
cultivation. As mandated by GRI 1, set forth supra,
classification shall be determined according to the terms of the
headings. As the heading language of 8232, HTSUSA, provides for
"parts" of agricultural machinery, the determinative issue is
whether the subject fabric, imported in material lengths, is
deemed an article for classification purposes so as to constitute
a "part."
The issue of whether material is to be deemed an article,
whether finished or unfinished, for classification purposes has
been examined at length by the courts. Customs has long adhered
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to the general principal set forth in the following cases, that
goods which remain material when entered are not classifiable as
a particular, identifiable article unfinished. See The Harding
Co. et al v. United States, 23 CCPA 250, T.D. 48109 (1936) (rolls
of brake lining held to be material because the identity of the
brake lining was not fixed with certainty); American Import Co.
v. United States, 26 CCPA 72, 75, T.D. 49612 (1938) (lengths of
silk fishing leader gut classified as manufactures of silk rather
than unfinished leaders); F.H. Paul & Stein Bros., Inc. v. United
States, 44 Cust. Ct. 130, C.D. 2166 (1960) (rolls of aluminum
foil without lines of demarcation held to be material and not
articles featuring an electrical element or device); Sandvik
Steel, Inc. v. United States, 66 Cust. Ct. 12, C.D. 4161, 321
F.Supp. 1031 (1971) (knife steel in coils with no lines of
demarcation, requiring cutting to length, held to be material
rather than unfinished blades); Naftone, Inc. v. United States,
67 Cust. Ct. 340, C.D. 4294 (1971) (rolls of plastic film without
demarcations, having only one use, held to be insulating
material).
In Headquarters Ruling Letter (HRL) 087849, dated May 22,
1991, citing Lee Enterprises, Inc. v. United States, 84 Cust. Ct.
208, C.D. 4860 and Bendix Mouldings, Inc. v. United States, 73
Cust. Ct. 204, C.D. 4576, 388 F. Supp. 1193 (1974), this office
stated:
"[S]ince goods which are material when entered are classified as material, these goods are not 'parts'.
'Parts' are integral, constituent components of
a larger entity and 'material' lacks the essential
character of an integral, constituent article.
Where the identity of an imported article is not
fixed with certainty it will be regarded as material
and not as an unfinished article or a part."
The general rule when examining the issue of whether
material may be classified as an unfinished article (or a
"part"), is whether the fabric in its imported condition has been
so far advanced beyond the stage of materials so as to be
dedicated to and commecially fit for use as that article and
incapable of being made into more than one article or class of
articles. See Avin Industrial Products Co. v. United States, 72
Cust. Ct. 43, C.D. 4503, 376 F. Supp. 879, reh denied, 72 Cust.
Ct. 147, C.D. 4522 (1974). In the instant case, the mushroom
growing nets are imported in rolls of fabric, with no lines of
demarcation. After importation, the fabric will be cut to the
proper length, and perhaps even to width, depending upon the
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needs of the individual grower. The woven fabric imported in
rolls is not to its final shape, nor is its identity fixed with
certainty. It is conceivable that this woven polyethylene
fabric, imported in material lengths, could be put to any number
of commercial uses. In no discernable way has the subject
fabric, at the time of importation, been dedicated to a
particular use so as to pass from material status to that of
"parts."
Based on the foregoing discussion, the fabric at issue is
not deemed classifiable as a "part", and classification within
subheading 8432.90.0080, HTSUSA, is precluded. We note that
classification under headings 8433, 8434 and 8436, all provisions
for machinery and their parts, is similarly precluded on this
basis.
Although you did not claim classification under subheading
9817.00.60, HTSUSA, in your request for a binding ruling, we feel
this provision should be addressed as it raises similar issues to
those discussed supra. Subheading 9817.00.60, HTSUSA, provides
for parts to be used in articles provided for in headings 8432,
8433, 8434 and 8436, whether or not such parts are principally
used as parts of such articles and whether or not covered by a
specific provision within the meaning of additional U.S. rule of
interpretation 1(c). This office has previously held that in
order for an article to be eligible for duty free treatment as
"parts" of machines used in agricultural pursuits under
subheading 9817.00.60, HTSUSA, the following three part test must
be met:
1) the articles must not be excluded from classification within
9817.00.60, HTSUSA, by Section XXII, Chapter 98, Subchapter XVII,
U.S. Note 2;
2) the terms of subheadings 9817.00.50 or 9817.00.60 must be met
in accordance with GRI 1; and
3) the merchandise must meet the actual use conditions required
under Customs Regulations 10.133, 10 CFR 133.
See HRL's 087849, May 22, 1991, and 950216, December 19, 1991.
With regard to the first criterion, Note 2(e) to Subchapter
XVII, Chapter 98, specifically excludes "articles of textile
material" from the provisions of subheading 9817.00.60, HTSUSA.
Since these fabrics are textile, they are precluded from
classification within subheading 9817.00.60, HTSUSA.
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Moreover, as discussed above, the subject fabric fails to
meet the second criterion for classification within subheading
9817.00.60, HTSUSA, inasmuch as fabric imported in material
lengths, with no lines of demarcation, with no discernable fixed
identity and capable of being put to more than one commercial
use, is not classifiable as an "article" and therefore not
classifiable as a "part" for classification purposes. The
subject fabric in its imported state does not meet the terms of
heading 9817.00.60 as mandated by GRI 1.
As the first two criteria for classification under
subheading 9817.00.60 have not been met, we need not address the
third in this instance.
Heading 5407, HTSUSA, provides for woven fabrics of
synthetic filament yarn. As there is no evidence that the
subject fabric has been coated, classification is proper within
this heading.
HOLDING:
Style numbers 43009 and 43109 are classifiable under
subheading 5407.72.0060, HTSUSA, which provides for "[W]oven
fabrics of synthetic filament yarn, including woven fabrics
obtained from materials of heading 5404: other woven fabrics,
containing 85 percent or more by weight of synthetic filaments:
dyed... weighing more than 170 grams per square meter, " dutiable
at a rate of 17 percent ad valorem. The applicable textile quota
category is 620.
The designated textile and apparel categories may be
subdivided into parts. If so, the visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available we
suggest your client check, close to the time of shipment, the
Status Report on Current Import Quotas (Restraint Levels), an
internal issuance of the U.S. Customs Service which is updated
weekly and is available for inspection at the local Customs
office.
Due to the nature of the statistical annotation (the ninth
and tenth digits of the classification) and the restraint
(quota/visa) categories, your client should contact the local
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Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division