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HQ 088236


July 3, 1991

CLA-2 CO:R:C:M 088236 CMS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8444.00.00, 8475.20.00
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?

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
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
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,


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