CLA-2:CO:R:C:G 083930 JAS
Mr. Ken Church
Faroex Ltd.
P.O. Box 1950
Gimli, Manitoba, Canada
ROC 1B0
RE: POLYGRATE and POLY-FRAME Flooring Components
for Farrowing Crates and Weanling Decks
Dear Mr. Church:
In your letter of January 20, 1989, you inquire as to the
tariff classification of plastic articles called POLYGRATE and
POLY-FRAME, from Canada, used as flooring in the birthing and
raising of baby pigs. You provided additional information by
telephone on May 17, 1989, and stated that POLYPEN components
were not the subject of this request. Our ruling follows.
FACTS:
POLYGRATE designates modular flooring sections made from
a mixture of polypropylene plastic and 20 percent by weight
fiberglass. These are slotted grates that come in 1ft. x
30in. and 1ft. x 2ft. sections. They have beveled edges and
rounded surfaces to minimize injury to the piglets and side
and end interlocks to provide a snap-together fit without the
need for metal hardware. POLY-FRAME describes a series of
2ft. x 4ft. beams plus tripod legs, joist hangers and end
brackets, all made from 40 percent unsaturated polyester resin
by weight mixed with 60 percent fiberglass by weight. You
have indicated that the plastic provides form and corrosion
resistance while the fiberglass provides strength.
Farmers will order a predetermined number of slotted
grates and beams. In use, the beams are fitted togther on a
concrete barn floor to create a desired configuration. Grate
sections are then interlocked at their ends to provide a
unique "nesting" effect on their underside to permit them to
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lock onto the beams. Pregnant sows are allowed to give birth
to piglets on the grates. POLYGRATE and POLY-FRAME units
used with POLYPEN pickets (not a part of this request) to form
an enclosure are often called farrowing crates. Pig wastes
fall through the slots to the barn floor below where they are
hosed away. After several weeks the piglets are weaned from
their mothers and placed in similar configurations where they
are allowed to fatten before being sent to market. Such
confinement areas with pickets are called weanling decks. To
minimize stress on the piglets, nipple drinkers are installed
and heat lamps often placed in the barn to create an
incubator-like atmosphere.
You state that POLYGRATE and POLY-FRAME are used by
farmers as parts of incubators for baby piglets, and are
analogous to poultry incubators and brooders classifiable free
of duty in subheading 8436.91.0000, Harmonized Tariff Schedule
of the United States Annotated (HTSUSA). You conclude,
therefore, that this merchandise is properly classifiable
under the duty-free provision for other parts of barn or
barnyard machines, in subheading 8436.99.0040, HTSUSA. You
state that Customs officers in our Pembina office have
tentatively advised you that the articles are classifiable as
other articles of plastics, in subheading 3926.90.9050,
HTSUSA.
ISSUE:
Are POLYGRATE and POLY-FRAME units classifiable in
subheading 8436.99.0040, as articles of plastic, or in some
other HTSUSA provision?
LAW AND ANALYSIS:
There is no evidence that POLYGRATE and POLY-FRAME units
function as parts of piglet incubators or similar farm-type
agricultural machinery, so as to warrant classification in
subheading 8436.99.0040, HTSUSA.
Structural elements of plastic used, for example, in
floors, walls or partitions, ceilings or roofs, are
classifiable in heading 3925 as builders' ware of plastics.
See Chapter 39, Note 11(b), HTSUSA.
For classification purposes under the HTSUSA, goods
consisting of different materials which are prima facie
classifiable in two or more provisions (in this case in
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heading 3925 or as articles of glass fibers in heading 7019),
are to be classified as if they consisted of the material
which gives them their essential character. See General Rule
of Interpretation 3(b), HTSUSA. In this case, the plastic
gives these goods their essential character because it
provides their form, the rigidity necessary for flooring use,
and resistance to chemicals and corrosion. In addition,
Explanatory Notes, the official explanation of the HTSUSA at
the international level, indicate that Chapter 39 includes
products consisting of glass fibers impregnated with plastics
and compressed together. POLYGRATE and POLY-FRAME are used to
build or construct an elevated base on a ground surface,
usually in a barn. Therefore, these articles qualify, for
tariff purposes, as structural elements used in floors, and
are classifiable as other builders' ware of plastics, not
elsewhere specified or included, in subheading 3925.90.0000,
HTSUSA. The rate of duty is 5.3 percent ad valorem.
However, subheading 9817.00.5000, HTSUSA, provides for
the duty-free entry of machinery, equipment and implements to
be used for agricultural or horticultural purposes. This is
an actual use provision. Notwithstanding the existence of a
competing HTSUSA provision for these articles, they are
classifiable in subheading 9817.00.5000, HTSUSA, if the
conditions and requirements thereof and any applicable
regulations are met. See Chapter 98, U.S. Note 1, HTSUSA.
POLYGRATE and POLY-FRAME units are implements to be used
for a recognized agricultural purpose, and are not otherwise
excluded from classification in subheading 9817.00.5000 by
U.S. Notes to Subchapter XVII, HTSUSA.
HOLDING:
POLYGRATE and POLY-FRAME units are classifiable as other
builders' ware of plastics, in subheading 3925.90.0000,
HTSUSA, dutiable at the rate of 5.3 percent ad valorem.
However, these articles may be eligible for duty-free
entry under subheading 9817.00.5000, HTSUSA, upon compliance
with the actual use requirements of sections 10.131 through
and including 10.139, Customs Regulations. Copies are
enclosed for your reference.
Sincerely,
John Durant, Director
Commercial Rulings Division
Enclosure