HQ 0087913 - Scarey Man predator scarer; composite good with essential character imparted from woven textile coated, covered or laminated with plastic and plastic coating can be seen with the naked eye; inflatable article not elsewhere specified; machinery, equipment and implements for agricultural or horticultural purposes; GRI 3(b) - United States International Trade Commision Rulings

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HQ 087913

November 7, 1990

CLA-2 CO:R:C:G 087913 JMH

Category: CLASSIFICATION

TARIFF NO: 3926.90.75, 9817.00.50

Mr. Robert Royal
P.O. Box 108
Midnight, MS 39115

RE: Scarey Man predator scarer; composite good with essential character imparted from woven textile coated, covered or laminated with plastic and plastic coating can be seen with the naked eye; inflatable article not elsewhere specified; machinery, equipment and implements for agricultural or horticultural purposes; GRI 3(b)

Dear Mr. Royal:

Your request for a classification ruling under the Harmonized Tariff Schedule of the United States Annotated ("HTSUSA") for the complete "Scarey Man predator scarer" and the air bag portion of the unit was referred to this office for a reply.

FACTS:

The article in question, the "Scarey Man predator scarer", is an electronically controlled scarecrow used to frighten predatory birds and animals away from agricultural crops. The scarer periodically inflates a human shaped air bag to a height of approximately six feet. The device remains inflated for approximately two seconds and then deflates for the same amount of time. This process is repeated for a predetermined length of time. A siren and a light are also engaged during the display period.

The "Scarey Man" has four principal components: an air bag, an electric motor with an attached motor used to inflate the bag, an electric siren, and a timer device with controls for determining the length of the inflation/deflation cycle. The fan, siren, and timing device were previously classified in subheadings 8414.59.80, 8531.10.00, and 9106.90.80, HTSUSA. See New York Ruling Letter 851124, ("NY 851124") dated May 2, 1990.

This ruling addresses the classification of the complete unit and the air bag when imported separately. The air bag is made of textile material that is coated on both sides with plastic.

ISSUE:

Issue 1: What is the appropriate classification for the complete "Scarey Man" unit and the air bag when imported separately?

Issue 2: Is the "Scarey Man" unit eligible for duty free treatment under heading 9817.00.50, HTSUSA, as agricultural machinery, equipment or implements?

LAW AND ANALYSIS:

Issue 1: What is the appropriate classification for the complete "Scarey Man" unit and the air bag when imported separately?

The classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUSA, states in part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and...according ..to the following provisions."

The air bag in question is an inflatable article made of a woven textile that is coated on both sides with plastic. No specific heading exists which specifically describes such an article. Textile fabrics that are coated, covered or laminated with plastics are described in Chapter 59, HTSUSA. Chapter 59, Note 2(a)(3), HTSUSA, provides in pertinent part the following:

Heading 5903 applies to...textile fabrics impregnated, coated, covered or laminated with plastics...other than:

Fabrics in which the impregnation, coating, or covering cannot be seen with the naked eye... (emphasis added)

The legal note, therefore, excludes textiles visibly coated on both sides such as the inflatable bag in question.

Furthermore, the General Explanatory Notes to Chapter 39 state that Chapter 39 includes "textile fabrics and nonwovens, either completely embedded in plastics or entirely coated or covered on both sides with such material" as long as the coating is visible to the naked eye. Harmonized Commodity Description
and Coding System ("HCDCS") Vol 2, p. 554. The Explanatory Notes, although not dispositive, are to be looked to for the proper interpretation of the HTSUSA. 54 Fed. Reg. 35127, 35128 (August 23, 1989).

It is the opinion of this office that the air bag is best described by heading 3926, HTSUSA, as "Other articles of plastics and articles of other materials of heading 3901 to 3914..." The proper classification for the air bag is in subheading 3926.90.75, HTSUSA, as "Other articles of plastics and articles of other materials of heading 3901 to 3914...Other...Pneumatic mattresses and other inflatable articles, not elsewhere specified or included..."

The complete "Scarey Man" unit consists of articles classified in four different headings, 3926, 8414, 8531 and 9106. GRI 3, HTSUSA, one of "the following provisions" mentioned in GRI 1, must be utilized when an article is classifiable in two or more headings. GRI 3(a), HTSUSA, provides that the heading which most specifically describes the goods is preferred and headings for goods in a set are to be considered equally specific. However, when two or more headings refer to part only of a mixed or composite good or a set put up for retail sale, those headings are considered to be equally specific. GRI 3(b) states that:

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Therefore, if the "Scarey Man" is a mixture, composite good or a set, the four headings are equally specific and a determination must be made as to which component provides the essential character to the set. A "mixture" is "Something made by mixing...A composition of two or more substances not chemically bonded to each other." Webster's II New Riverside University Dictionary, p. 760 (1984). "Composite goods" are goods made of components attached so to be inseparable and goods made of components which are inseparable but which are mutually complementary and which form a whole that would not normally be offered for sale in separate parts. Explanatory Notes GRI 3(b)(IX), HCDCS, Vol. 1, p. 4. "Sets" are made of goods which are classifiable in two or more different headings, are used for the same specific activity or need, and are sold to the user without further repacking. Explanatory Note GRI 3(b)(X), HCDCS, Vol. 1, p. 4.

It is the opinion of this office that the "Scarey Man" is a composite good. It is made of individual components attached to each other. The components are mutually complementary. The components would not normally be sold separately to fulfill the function of frightening away predators. Since the "Scarey Man" is a composite good, the four headings are equally specific. The "Scarey Man" must be classified according to the component which provides the composite good's essential character. It is the opinion of this office that the air bag imparts the composite good's essential character. It is the air bag which inflates to be the "Scarey Man". Therefore, the "Scarey Man" set is properly classified in subheading 3926.90.75, which is the classification for the air bag.

Issue 2: Is the "Scarey Man" unit eligible for duty free treatment under heading 9817.00.50, HTSUSA, as agricultural machinery, equipment or implement?

Heading 9817.00.50, HTSUSA, provides duty free treatment to "Machinery, equipment and implements to be used for agricultural or horticultural purposes." To fall within this special classification a three part test must be met.

First, the articles must not be among the long list of exclusions to heading 9817.00.50, HTSUSA, under Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, HTSUSA. Secondly, the terms of heading 9817.00.50 must be met in accordance with GRI 1. This determination focuses upon the specific agricultural or horticultural pursuit in question and what machine, equipment or implement performs this pursuit. Thirdly, the merchandise must have the actual use certification required under 10 C.F.R. 10.138.

Since the entire "Scarey Man" unit constitutes a set to be classified according to the air bag, it is that classification with which we are concerned. A review of Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, establishes that articles of textile material are excluded from the duty free treatment provided by 9817.00.50. The air bag in question is a textile material coated on both sides with a plastic. For classification purposes the air bag is treated as an article of plastic, and not as an article of textile material. Thus, the exclusion for articles of textile materials is not applicable to the air bag. Goods classified in subheading 3926.90.75 are not excluded from the duty treatment provided by heading 9817.00.50. Therefore, the first requirement is met.

The second requirement is that the terms of heading 9817.00.50 must be met in accordance with GRI 1. The "Scarey Man" unit is to be used to frighten predators away from agricultural crops. Heading 9817.00.50 describes "Machinery,
equipment and implements to be used for agricultural or horticultural purposes." The pursuit in question is the scaring away of predators. The complete "Scarey Man" performs this function. The "Scarey Man" is intended for agricultural purposes, and therefore, meets the terms of heading 9817.00.50.

The final requirement is that the importer must provide certification that the "Scarey Man" is actually being used in a agricultural or horticultural pursuit in accordance with 10 C.F.R. 10.138. If this requirement is met, the "Scarey Man" is eligible for duty free treatment under heading 9817.00.50.

HOLDING:

The air bag of the "Scarey Man predator scarer" is classified in accordance with GRI 1 under heading 3926, HTSUSA. The classification of the air bag is subheading 3926.90.75, as "Other articles of plastics and articles of other materials of heading 3901 to 3914...Other...Pneumatic mattresses and other inflatable articles, not elsewhere specified or included..."

The complete "Scarey Man predator scarer" constitutes a composite good within the meaning of GRI 3(b). The air bag imparts the composite good's essential character. Thus, the complete "Scarey Man predator scarer" is classified in subheading 3926.90.75, as "Other articles of plastics and articles of other materials of heading 3901 to 3914...Other...Pneumatic mattresses and other inflatable articles, not elsewhere specified or included..."

The complete "Scarey Man predator scarer" is not excluded from the duty treatment of heading 9817.00.50. The unit is used in an agricultural or horticultural pursuit as required by the terms of the heading. As long as the actual use certification required by 10 C.F.R. 10.138 is fulfilled, then the "Scarey Man predator scarer" is entitled to duty free treatment under heading 9817.00.50.

Sincerely,

John Durant, Director
Commercial Rulings Division

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