 HQ 954978 |
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October 21, 1994
CLA-2 CO:R:C:T 954978 CMR
CATEGORY: Classification
TARIFF NO.: 6002.20.1000
District Director U.S. Customs Service 6269 Ace Industrial Drive Milwaukee, Wisconsin 53237-0260 RE: Protest with Application for Further Review #3701-93-100113; Classification of tubular knitted polyethylene netting; made up articles; Note 7, Section XI; headings 3917, HTSUSA, 6307, HTSUSA, or 6002, HTSUSA
Dear Sir:
This ruling is in response to a timely protest filed by the firm of Sullivan & Lynch on behalf of their client, XXXXX XXXXXXXXX Inc., against your liquidation and classification of three entries of certain tubular knitted polyethylene netting. You classified the netting as a warp knit openwork fabric of subheading 6002.20.1000, HTSUSA. Protestant claims the netting is classified in subheading 3917.32.00, HTSUSA, which provides for tubes, pipes and hoses, of plastics, not reinforced or otherwise combined with other materials, without fittings, of polyethylene, or in the alternative, in subheading 6307.90.99, HTSUSA, as an other made up article of textile fabric.
FACTS:
Protestant describes the merchandise at issue as polyethylene packaging mesh. Customs has described it as a tubular, open-work, warp knit fabric of polyethylene.
The protestant asserts classification of the merchandise under heading 3917.32.00, HTSUSA, based upon Note 8, Chapter 39, HTSUSA, which states that the expresssion "tubes, pipes and hoses" includes, among other things, lay flat tubing. Protestant cites to NYRL 836407 of February 22, 1989, for support of its claim. That ruling classified net-like lay flat tubing, imported in material lengths and used to make bait holders for lobster fishing or packaging for Christmas trees, in subheading 3917.32.00, HTSUSA. The lay flat tubing was described as "composed of extruded polyethylene and...not made from pre- -2-
existing filaments." Protestant believes the merchandise at issue herein is similar to the merchandise ruled upon in NYRL 836407 based upon the description and the fact that protestant's merchandise is also used as a lobster bait holder and can be used for the bagging of Christmas trees. Therefore, protestant believes its merchandise should be classified in subheading 3917.32.00, HTSUSA, in accord with NYRL 836407.
In the alternative, protestant seeks classification of the merchandise at issue as an other made up article of textile of heading 6307, HTSUSA. The Harmonized Commodity Description and Coding System Explanatory Notes (hereinafter EN) are cited for support of this proposition. Protestant cites the EN to heading 6307, HTSUSA, wherein it is stated:
Besides the finished articles listed above, this heading covers articles in the length, made up within the meaning of Note 7 to Section XI, provided they are not included in other headings of Section XI.
Protestant believes its product meets the terms of Note 7, Section XI, as stated in provision (f) of the note. Note 7(f) states:
For the purposes of this Section, the expression "made up" means:
(f) Knitted or crocheted to shape, presented in the form of a number of items in the length.
Protestant cites HRLs 084348 of August 3, 1989, and 085570 of January 12, 1990, for further support.
You based your classification of the merchandise as knit fabric of heading 6002, HTSUSA, upon an analysis of the product by one of Customs laboratories and a review of the material by the National Import Specialist assigned to this merchandise.
The original sample of the merchandise at issue was inadvertently destroyed. Another sample was submitted by protestant's counsel and received by Customs on December 14, 1993. This sample was examined by the National Import Specialist who advised this office it is not the same construction as the original sample. This office obtained the Customs laboratory report with a swatch of the original sample attached. Upon examination, we must agree the samples are different and therefore we will ignore the sample submitted on December 14th and base our decision upon the sample swatch and laboratory report.
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ISSUE:
Is the polyethylene netting at issue classified as plastic lay flat tubing of polyethylene in subheading 3917.32.00, HTSUSA, or as an other made up article of textile of subheading 6307.90.99, HTSUSA, or as a knit fabric of subheading 6002.20.1000, HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."
The Customs laboratory report with a piece of the subject merchandise attached described the merchandise as follows:
The sample consists of a tubular, open-work, warp knit fabric having a width of 16 centimeters when laid flat. This fabric is composed of 100 percent by weight of polyethylene strips of an apparent width not exceeding one millimeter.
Note 1(g), Section XI, provides:
This section does not cover:
Monofilament of which any cross-sectional dimension exceeds 1 mm or strip or the like (for example, artificial straw) of an apparent width exceeding 5 mm, of plastics (Chapter 39), or plaits or fabrics or other basketware or wickerwork of such monofilament or strip (Chapter 46).
Note 2(l), Chapter 39, provides: "This chapter does not cover:
(l) Goods of section XI (textiles and textile articles).
Based upon the legal notes cited above and the laboratory report provided to us, it is clear that the strips from which the merchandise at issue is made are considered textile for tariff purposes. As such, the merchandise is excluded by Note 2(l) from classification in Chapter 39.
As to protestant's reliance upon NYRL 836407, the merchandise at issue therein was made in a different manner of a different material. That merchandise was formed directly by extrusion through a forming die. It was not a textile, but a -4-
plastic good based upon the manner of production. Thus, NYRL 836407 is of no support for protestant because it is on a completely different good.
Protestant's alternate claim, heading 6307, HTSUSA, requires that the merchandise meet the terms of Note 7, Section XI, for qualifying as "made up". Protestant relies upon provision (f) of Note 7, which states that, in brief, the expression "made up" means "knitted or crocheted to shape, presented in the form of a number of items in the length." Protestant's counsel asserts the good meets this definition as it is knitted to shape and in continuous lengths.
We disagree with this assertion. The merchandise at issue is not recognizable as a "number of items in the length". It is one continuous tubular length of fabric and thus, does not meet the definition of "made up" in Note 7(f).
Protestant cites HRLs 084348 and 085570 as support that his merchandise should be classified as a made up article of heading 6307, HTSUSA. The goods at issue in those rulings did meet the requirements of Note 7 for consideration as "made up". In HRL 084348, the merchandise was described as being made of two panels which were joined by folding over and heat-sealing the edges. Clearly, the merchandise therein and the merchandise at issue here are distinguishable. HRLs 084348 and 085570 do not lend any support to protestant's argument.
Finally, protestant's counsel cited Fabrene Inc. v. United States, Slip Op. 93-164, decided August 16, 1993, and Sanwa Foods, Inc. v. United States, Slip Op. 93-169, decided August 23, 1993 (judgement for the plaintiff), as supportive of the sought classification. In the matter of Sanwa Foods, a rehearing was granted on February 22, 1994, in Sanwa Foods, Inc. v. United States, Slip Op. 94-30. The decision after the rehearing, Sanwa Foods, Inc. v. United States, Slip Op. 94-76, decided May 10, 1994, was for the defendant.
Customs has reviewed these decisions and finds they do not support the protestant's claim. Fabrene merely refers to the descriptions contained in Customs rulings HRLs 084348 and 085570, and the case was dismissed for lack of jurisdiction. Sanwa dealt with merchandise that was of plastic and classified in Chapter 39. Chapter 39 does not contain an analogous "made up" requirement as that of Chapter 63. In addition, in Sanwa, Slip Op. 94-76, the court agreed that Customs classification of the merchandise at issue therein in subheading 3920.10.00, HTSUSA, which provides for other plates, sheets, film, foil, and strip of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: of polymers of ethylene, -5-
was correct. The plaintiff in the case had sought classification of the merchandise as articles for the conveyance or packing of goods, of plastic, of heading 3923, HTSUSA.
Having reviewed the protestant's arguments, we believe the merchandise was correctly classified by Customs as a tubular, open-work, warp knit fabric of polyethylene classified in subheading 6002.20.1000, HTSUSA, which provides for other knitted or crocheted fabrics: other, of a width not exceeding 30 cm:
open-work fabrics, warp knit. Goods classified therein fall within textile category 229 and are subject to a rate of duty of 16 percent ad valorem.
HOLDING:
The protest should be denied in full.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director Commercial Rulings Division