HQ 087913: 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)

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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.


                               -2-


     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

                               -3-


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.


                               -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,
                               -5-


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