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