CLA-2 CO:R:C:M 088236 CMS
9902.84.44
Mr. Philip Y. Simons, Esq.
Freeman, Wasserman & Schneider
90 John Street
New York, NY 10038
RE: Reconsideration Of NY Ruling 854024 (July 11, 1990);
Modified; Affirmed; Machinery For Extruding Or Drawing Quartz
Fibers; Man Made Textile Materials
Dear Mr. Simons:
This is in response to your request on behalf of Fiber
Materials, Inc., dated November 14, 1990, for the reconsideration
of NY Ruling 854024 (July 11, 1990).
FACTS:
The merchandise consists of machinery used to draw solid
quartz rods into quartz fibers. Confidentiality was requested
regarding the machinery's particular method of operation.
NY Ruling 854024 (July 11, 1990) held that the merchandise
was classified in Heading 8444 as machines for extruding, drawing
texturing or cutting man-made textile materials. NY Ruling
854024 also held that the merchandise was not eligible for the
duty free treatment provided by 9902.84.44, HTSUSA.
ISSUES:
1) Is the merchandise classified in Heading 8475 as
machines for manufacturing or hot working glass or glassware, or
in Heading 8444 as machines for extruding or drawing "man-made
textile materials"?
2) Is the merchandise eligible for the duty free treatment
provided by 9902.84.44, HTSUSA?
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LAW AND ANALYSIS:
The Harmonized Tariff Schedule of the United States
Annotated (HTSUSA) provides that the classification of articles
is governed by the General Rules of Interpretation (GRI's). GRI
1 states in pertinent part that "...classification shall be
determined according to the terms of the headings and any
relative section or chapter notes...".
Heading 8444 in pertinent part describes machines for
extruding or drawing "man-made textile materials". Heading 8475
in pertinent part describes machines for manufacturing or hot
working glass or glassware.
Chapter 54 Note 1 defines the term "man-made fibers" for the
purposes of the tariff schedule. Chapter 54 Note 1 provides in
pertinent part that "[t]hroughout the tariff schedule, the term
"man-made fibers" means staple fibers and filaments of organic
polymers produced by manufacturing processes, either:
(a) By polymerization of organic monomers...;or
(b) By chemical transformation of natural organic
polymers...
Chapter 54 Note 1 also provides that the term
"man-made" shall have the same meaning when used in relation to
"textile materials".
The importer does not claim that the quartz fibers produced
by the merchandise satisfy the Chapter 54 Note 1 definition of
"man-made fibers", and the quartz fibers are not in fact
described by Chapter 54 Note 1.
Because the machinery under consideration does not produce
"man-made textile materials", it is not described by Heading
8444 and cannot be classified in Heading 8444.
The importer argues that quartz fibers are considered by
some in the textiles materials trade to be a textile material.
This argument does not support the classification of the
merchandise in Heading 8444. "It is not enough that an article
be called a tariff term in the trade vernacular. There must also
be a showing made that the article embodies the salient
characteristics of the tariff term claimed." Clipper Belt Lacer
Co., Inc. v. United States, CIT , Slip Op. 90-22 (March
13, 1990), p. 15. Chapter 54 Note 1 provides a specific GRI 1
definition for the term "made-made" fibers; no showing has been
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made that the merchandise under consideration extrudes or draws
"man-made" fibers or materials as defined by the tariff.
The machinery under consideration is described by Heading
8475 as machines for manufacturing or hot working glass or
glassware. The Explanatory Notes to Heading 8475, p. 1309,
provide that the heading covers machines "...which work glass
(including fused quartz and other fused silica)...". The
Explanatory Notes specifically provide on p. 1310 that Heading
8475 covers "[m]achines for making glass fibre or filaments"
(emphasis in original).
The importer argues that the merchandise under
consideration does not operate in an identical fashion to the
machines described in the Explanatory Notes to Heading 8475.
However, the machines under consideration are used for
manufacturing or hot working glass or glassware and are described
by the terms of Heading 8475. The merchandise is classified as
machines for manufacturing or hot working glass or glassware, in
8475.20.00, HTSUSA.
Subheading 9902.84.44 describes "[m]achines designed for
heat-set, stretch texturing of continuous man-made fibers
(provided for in heading 8444.00.00)". The merchandise under
consideration is neither provided for in heading 8444, nor does
it work "man-made fibers" as defined by the tariff. The
merchandise is not described by subheading 9902.84.44, and is not
eligible for the duty free treatment provided by 9902.84.44,
HTSUSA.
HOLDING:
NY Ruling 854024 (July 11, 1990) is modified to provide that
the merchandise under consideration is classified as machines for
manufacturing or hot working glass or glassware, in 8475.20.00,
HTSUSA. The part of NY Ruling 854024 which held that the
merchandise was not eligible for the duty free treatment
provided by subheading 9902.84.44, is affirmed.
This notice to you should be considered a modification of NY
Ruling 854024 (July 11, 1990) under 19 CFR 177.9. It is not to
be applied retroactively to NY Ruling 854024, and will not,
therefore, affect past importations of your client's merchandise
under that ruling. However, for the purposes of future
transactions in the merchandise of this type, NY Ruling 854024
will not be valid precedent. We recognize that pending
transactions may be adversely affected by this modification, in
that current contracts for importations arriving at a port
subsequent to the issuance of HQ Ruling 088236 will be classified
pursuant to the ruling. If such a situation arises, your client
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may, at its discretion, notify this office and apply for relief
from the binding effects of the decision as may be warranted by
the circumstances. However, please be advised that in some
instances involving import restraints, such relief may require
separate approvals from other government agencies.
Sincerely,
John Durant, Director
Commercial Rulings Division