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HQ 083930

May 19, 1989

CLA-2:CO:R:C:G 083930 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3925.90.0000; 9817.00.5000

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
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
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

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